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Full text of "The Queensland criminal reports : being a reprint of all criminal cases reported in the Supreme Court reports, vols. 1 to 5 (1860-1881), the Queensland law journal and Notes of cases, vols. I. to XI. (1881 to 1901), and the Queensland State reports and Weekly notes (1902 to 1907) ; with annotations showing what cases have been overruled, followed, etc., and with references to the sections of the criminal code now applicable"

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THE  QUEENSLAND 

CRIMINAL  REPORTS 

BEING   A  /     \^ 

REPRINT  ' 

OF 

ALL   CRIMINAL   CASES 

REPORTED    IN 

THE    SUPREME   COURT   REPORTS,  Vols.  1  to  5  (1860  to  1881), 

THE  QUEENSLAND  LAW   JOURNAL  and   NOTES  OF  CASES, 
Vols.  I.  to  XI.  (1881  to  1901), 

THE  QUEENSLAND    STATE    REPORTS   and  WEEKLY    NOTES 

(1902  to  1907). 

WITH    ANNOTATIONS 

SHOWING  WHAT  CASES  HAVE  BEEN   OVERRULED,  FOLLOWED,  !Eto., 

AND  WITH  REFERENCES  TO   THE   SECTIONS  OF  THE 

CRIMINAL  CODE  NOW  APPLICABLE. 


THOMAS   MACLEOD,   ESQ. 

(Barrister- at-Law), 

Editor  of  "  The  Queensland  Justice  of  the  Peace. "  and 

"  Blair  on  Worker's  Gompensation." 


BRISBANE  : 

LAW  BOOK   COMPANY  LIMITED. 

1913. 


P  RE  FACE.    \\  '^^^   / 


^-4wTre;t,i> 


This  volume  of  reprinted  reports  of  Criminal  Cases 
has  been  compiled  in  order  to  have  in  a  handy  form,  both 
for  Court  work  and  for  reference  purposes,  the  cases  decided 
on  this  branch  of  the  law  in  Queensland  prior  to  the  publica- 
tion of  The  Queensland  Justice  of  the  Peace,  to  which  it  is 
a  companion  volume.  Difficulty  has  been  experienced, 
especially  by  new  practitioners,  in  obtaining  complete  sets 
of  the  reports  (particularly  the  earlier  volumes),  from  which 
these  cases  have  been  reprinted,  and  in  addition  to  such 
difficulty,  the  price  of  the  reports  is  a  serious  consideration. 
Numerous  requests  have  been  made  during  recent  years  for 
such  a  volume,  and  it  is  hoped  it  will  prove  of  service,  not 
only  to  members  of  the  Profession,  but  also  to  Magistrates, 
Clerks  of  Petty  Sessions,  and  members  of  the  Police  Force, 
A  Subject  Index  is  included  in  order  to  facilitate  quick 
reference  to  cases.  The  Editor  desires  to  express  his 
thanks  to  Mr.  T.  B.  Hunter,  Solicitor,  who  has  personally 
attended  to  the  reading  of  the  proofs  and  the  checking  of 

references. 

T.  M. 

Lutwyche  Chambers, 

March,  1913. 


INDEX    OF    CASES. 


A 

PAQB 

Abbott,  R.  v.       . . 

. .       354 

Ah  Sam,  R.  v.    . . 

186 

Aird  V.  Skelton 

476 

Alberg,  R.  v. 

337 

Archibald,  R.  v. 

44 

Arrowsmith,  R.  v. 

. .       491 

Attwood,  R.  V. 

26 

s 

Baird  and  Others,  Williams  v. 

. .        166 

Ball  V.  Humphreys,  JSx  parte  Humphreys 

. .       467 

Barton,  R.  u.       . . 

. .        141 

Beckman,  R.  v. 

. .       381 

Bennett,  R.  «.     .  . 

23,  377 

Berneoker  v.  White 

. .       209 

Bilbey  v.  Hartley  and  Others 

219 

Black  V.  Turner  . . 

283 

Britcher  v.  Williams  and  Others 

249 

Bunney,  K.   v.    . . 

. .       265 

Bunting  and  Walsh,  R.  v. 

400 

C 

Camm,  R.  v. 

. .        138 

Carlo,  Pedro,  In  re 

. .       241 

CarroU  v.  Hasz,  Ex  parte  Hasz 

467, 470 

Caruchet,  In  re 

359 

Castles  and  Griffiths,  R.  v. 

54 

Cawley,  R.  v.       . . 

. .       314 

Chabal,  Ex  parte,  R.  v.  Lewis 

. .       409 

Chambers  and  Another,  R. 

V. 

327 

INDEX    OF    CASES. 


PAGE 

Clarke,  Emmerson  v. 

71 

Coath,  R.  v. 

63 

Collins,  R.  v.       . . 

24 

Connell,  B,.  v.      . . 

.       286 

Connolly  v.  Meagher,  Ex  parte  Meagher 

.       573 

Cooney,  Crudgington  v.     . . 

414 

Corbett,  R.  v.      . . 

.       463 

Corvie  and  Lesnini,  TA.  v. 

122 

Court,  In  re 

60 

Craine,  R.  «.        . . 

.       350 

Crown  (Tim),  B..  v. 

.       303 

Crudgington  v.  Cooney,  Ex  parte  Cooney 

414 

Cunningham  v.  McFarlane  and  Another 

129 

Curran  v.  Dowzer  and  Others 

160 

Davies  and  MoMurdo,  R.  v. 

150 

Dixon,  R.  V.       . . 

.        174 

Dodwell,  n.  V.     .. 

.        105 

Dowling  V.  Fritz  and  Others 

.       134 

Dowzer  and  Others,  Curran  v. 

160 

Draper,  R.  v.       . . 

.       492 

Duncan,  R.  v.     . . 

.       239 

Dunshot,  R.  w.    . . 

.       365 

e: 


Edwards,  McNamara  v. 
Edwards,  R.  v.   . . 
Emmerson  v.  Clarke 


Ex  parte  Edwards 


585 

310 

71 


Ferrett,  Ex  parte,  R.  v.  Wilson 

11 

Finlay,  B,.  v.        . . 

.       328 

Fitzgerald,  R.  v. 

494 

Forrest,  R.  -y.      . . 

600 

Franz,  R.  v. 

238 

Freeman,  B,.  v.    . . 

.       300 

Fritz  and  Others,  Dowling  v. 

.       134 

Fuzil  Deen,  B.  v. 

307 

INDEX    OF    CASES. 


PAGE 

Gallagher,  Sheehan  v.        . .             . .              . .              . .              . .       426 

Gash,  B,.  V. 

131 

Geise  v.  Hennessey,  Ex  parte  Hennessey- 

.       497 

Glen,  R.  V. 

.       361 

Goldsmith  v.  Roche 

52 

Goldsworfchy,  R.  v. 

.       334 

Gomez,  R.  v.        . . 

.       119 

Griffin  (No.  1),  R.  w. 

29 

Griffin  (No.  2),  R.  t;. 

35 

Griffiths  and  Castles,  B,.  v. 

54 

Griffiths  and  Others,  R.  v. 

.       502 

Grimes,  R.  v.       . . 

.       336 

H 

Hallam,  Molloy  v. 

. .       478 

Haly  and  Another,  Rawlings  v.       . . 

. .       234 

Hamill,  R.  v.        . . 

. .       495 

Hamilton,  R.  v. 

195,  362 

Hart,  R.  «. 

357,  370 

Hartley  and  Others,  Bilbey  v. 

219 

Hasz,  Carroll  v. 

467,  470 

Haughton,  In  re 

.        110 

Henderson  v.  Macdonald  and  Another 

.       216 

Hennessey,  Geise  v. 

497 

Hennessey,  R.  v. 

27 

Highfield,  R.  v.  . . 

.       117 

Hill,  n.  V. 

.       370 

Hinckley,  R.  v.  . . 

189 

Hobart  and  Murphy,  R.  «. 

.       342 

Hogan,  K.  V.       . . 

.       207 

Hogan  (Rody),  B,.  v. 

207 

Hook  (Lum),  R.  v. 

212 

Hopkins  and  Eaton,  R.  v. 

.       162 

Horrocks,  B,.  v.  . . 

.       237 

Hoskings,  B,.  v.  . . 

83 

Houston,  B.  V.    . . 

.       269 

Howells,  Ex  parte,  R.  v.  Edwards  . . 

.       310 

HuU,  B.v. 

.       396 

Hull  (No.  2),  R.  V. 

.       403 

Hume,  B.  V. 

.       395 

"VIU. 


INDEX    OF    CASES. 


PAGE 

Humphreys,  Ball  v. 

..       467 

Hustin  (Louis),  R.  v. 

. .        124 

<T 

Jack,  R.  w. 

256 

Jacobs,  R.  ■«.       . . 

. .       538 

James,  R.  v.        . . 

. .       329 

Jenkins,  McNamara  v.,  Ex  parte  Jenkins 

581 

Jimmy,  R.  v.       . . 

93 

Jooumsen,  R.  ■y. 

396 

Johnson,  B,.  v.     . . 

..       215 

Johnstone;  R.  v. 

591 

Jong  Song  V.  Joy  Hoy  and  Others  . . 

348 

Joy  Hoy  and  Others,  Jong  Song  v. 

348 

Judge,  R.  I). 

168 

Justices  of  Dalby,  Ex  parte,  O'Keefe,  R.  v.  . . 

. .       420 

If 

Kearley,  R.  v.     . . 

. .       601 

KeUy,  n.  V. 

78 

Kennedy  and  Royston,  R.  v. 

123 

Kenniff,  B,.  v.     . . 

422,  432,  434 

KennifE  (No.  2),  R.  v. 

. .       432 

Kiefer,  Millis  v. 

. .       376 

King,  R.  v. 

95 

King,  R.  v.,  Ex  parte  King 

1 

Knack,  R.  v.       . . 

. .       203 

Koghie,  B.  V.      . . 

189 

Kovalky,  R.  •y.    . . 

295 

Kuruwaru,  R.  v. 

372 

Xa 

Lang  and  Murphy,  R.  v.  . . 

352 

Lannon,  R.  v.     . . 

. .       486 

Leane,  R.  «. 

. .       492 

Lesnini  and  Corvie,  R.  v.  . . 

122 

Levy,  B.  V. 

56 

Lewis,  R.  i;. 

25 

Lewis,  Ex  parte  Chabal,  R.  v. 

. .       409 

Long  V.  Rawlins 

87 

Long,  In  re 

91 

INDEX   OF    CASES. 


IX 


Longland,  R.  v.  . . 

Louis  Hustin  (called  Watier),  R.  v. 

Lum  Hook,  R.  «. 

Lynch,  R.  v. 


PAOB 

325 
124 
212 
537 


BS 

Macdonald,  R.  v. 

Macdonald  and  Another,  Henderson  v. 

Maguire  and  Schloss,  R.  v. 

Malone,  R.  v. 

Mangin,  R.  v. 

Many  Many  and  Others,  R.  v. 

Meagher,  Connolly  v.,  Ex  parte  Meagher 

MiUis  V.  Kiefer    . . 

MiUs,  Swanwick  v. 

Minnis,  In  re 

Molloy  V.  HaUam 

Moody,  U.  V. 

Moran,  R.  v. 

Murphy  and  Hobart,  R.  v. 

Murphy  and  Lang,  R.  v. 

Murphy  and  Others,  R.  v. 

Murray,  R.  v. 

McDermott,  R.  v. 

McFarlane  and  Another,  Cunningham  v. 

McGee,  U.  v. 

McMurdo  and  Da  vies,  R.  v. 

McNamara  v.  Edwards,  Ex  parte  Edwards 

McNamara  v.  Jenkins,  Ex  parte  Jenkins 


MT 


Nugent,  R.  v. 


386,  505 
216 
337 
461 
261 
296 
573 
376 
191 
134 
478 
344 
335 
342 
352 
549 
370 
433 
129 
279 
150 
585 
581 


24 


O'Byme,  Ex  parte,  Smith  v.  O'Byrne 
0' Byrne,  Smith  v. 

O'Keefe,  Ex  parte,  R.  v.  Dalby  Justices 
Oliver,  Ex  parte,  R.  v.  Murray 


252 
252 
420 
370 


Parker,  R.  v. 
Patterson,  R.  v. 


140 
580 


INDEX    OF    CASES. 


Pearce,  R.  v. 

,                             , 

,                          , 

.       532 

Pearson,  R.  v.     . . 

39 

Peim,  R.  V. 

62 

Pieremont,  R.  r. 

.       175 

Pierson,  The  King  v.,  Ex  parte  Small 

.       549 

Portley,  R.  v.      . . 

81 

Priday,  R.  v.       . . 

.       384 

Priday,  Ex  parte,  R.  v.  Priday 

.       384 

Pugh,  R.  V. 

13 

IC 

Rawlins,  Long  v. 

87 

Rawlings  v.  Haly  and  Another 

.       234 

Richert,  R.  «.     . . 

.       335 

Robinson,  B..  v.  . . 

.       285 

Roche,  R.  v.. 

.       204 

Roche,  Goldsmith  v. 

52 

Rody  Hogan,  R.  v. 

.       207 

Ross,  R.  v. 

.       298 

Royle,  R.  v. 

.       272 

Roys,  R.  i;. 

351 

Royston  and  Kennedy,  R 

V. 

123 

Ryan,  B,.  v. 

" 

.       553 

B 

Sam  (Ah),  R.  v.    < . 

186 

Schloss  and  Maguire,  R.  v. 

337 

SeUheim  and  Others,  Viokers  v.       . . 

.        136 

Shaw,  R.  D. 

.       337 

Sheehan  v.  Gallagher,  Ex  parte  Sheehan 

.       426 

Sidney,  Ex  parte,  R.  v.  White 

8 

Skelton,  Aird  v. 

.       476 

Small,  Ex  parte.  The  King  v.  Pierson 

.       549 

Smith  V.  O'Byrne              i. 

.       252 

Spence,  R.  v.       . . 

.       335 

Street,  R.  ■;;.         . .              . .              . .  ~ 

.       196 

Strutt,  Ex  parte,  R.  v.  Macdonald  . . 

.       386 

Swanwick  v.   Mills 

.       191 

T 

The  King  v.  Pierson,  Ex  parte  Small              . .             . .              . .       549 

Tidbury,  B,.  v.    .. 

. 

, 

.       349 

INDEX    OF    CASES. 


XI 


Tim  Crown,  R.  v. 
Tracey,  R.  v. 
Turner,  Black  v. 


FAOB 

303 
299 
283 


Vickers  v.  Sellheim  and  Others 

Vos,  R.  «. 

Vos  and  Others,  R.  u. 


136 
334 

288 


vsr 


Walsh  and  Bunting,  R.  v. 

Warden,  R.  v.     . . 

Warton,  B,.  v.     . . 

WeUs,  R.  V. 

White,  Bemecker  v. 

White,  R.  v..  Ex  parte  Sidney 

Whitehouse,  R.  v. 

WilMe,  B,.  V. 

Williams  v.  Baird  and  Others 

Williams  and  Others,  Britcher  v. 

WiUie,  B..  V. 

Wilson,  R.  «. 

Wilson,  R.  v.,  Ex  parte  Ferrett 

Wisher  and  Another,  R.  v. 


308,  366, 


400 
353 
540 
112 
209 
8 

392,  396 
41 
166 
249 
336 
336 
11 
323 


Queensland  Justice  of  tlje  Peace. 


CRIMINAL    REPORTS. 


1860-1907. 


R.  V.  KING,  Ex  parte  KING. 

[1  S.C.R.  1.— Note— See  ss.  12, 13,  14.  557  (8)  of  Criminal  Code,  41  and  55  Vic, 
c.  69  ;  Extradition  Act,  1903  (No.  12  of  1903]. 

Habeas  corpus — Remand  of  prisoner  where  the  Court  has  no  jurisdic- 
tion to  try  o'ffence — Corpus  delicti — Arrest  of  prisoner  on 
suspicion  of  a  felony  committed  beyond  the  territorial  limits  of 
the  colony — Comity  of  nations — Delivery  up  of  fugitives  from 
justice — Extradition — 2  Vic,  No.  11 — 6  and  7  Vic,  c.  34, 
ss.  2,  3,  4,  5,  6,  9—16  and  17  Vic,  c  118. 

A  constable  has  no  power  to  arrest  a  person  on  suspicion  of  having  committed 
a  felony  beyond  the  territorial  limits  of  the  colony,  unless  such  felony  be  supposed 
to  have  been  committed  upon  the  high  seas  and  within  the  limits  of  the 
Admiralty  jurisdiction  of  the  Supreme  Court  of  Queensland. 

If  an  arrest  appears  to  have  been  improperly  effected,  the  Court  cannot 
remand  a  prisoner,  unless  there  be  some  ofience  committed  by  him  within  the 
jurisdiction  of  the  Court. 

Independent  of  special  compact,  no  state  is  bound  to  deliver  up  fugitives 
from  justice  upon  the  demand  of  a  foreign  state,  and  there  is  no  rule  of  the  law 
of  nations  which  requires  the  Supreme  Court  of  Queensland  to  assist  the  police 
of  a  foreign  dominion  in  bringing  offenders  to  justice. 

Application  by  William  King  for  his  discharge  on  the  return 
to  a  writ  of  habeas  corpus. 


I860. 

23nd  February, 

25th  March. 

Lutwyche. 


a  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

ExparuKi^a.         Blalceney  appeared  for  the  prisoner. 

Pring  A.O.   to   oppose  the  application. 

The  facts  and  arguments  appear  sufficiently  in  the  judgment. 
C.A.V. 

25th  March,  1860. 
ulwyc  e  J.  LtTTWYCHE  J.  :    A  rule  nisi  having  been  obtained  in  Chambers 

for  a  habeas  corpus  directing  the  keeper  of  the  gaol  at  Brisbane  to 
bring  up  the  body  of  WiUiam  King,  in  order  that  he  might  be 
discharged  from  custody,  on  the  first  day  of  the  present  Term,  he 
was  accordingly  brought  into  Court,  and  the  return  made  by  the 
gaoler  was  that  King  had  been  committed  to  his  custody  by  ^drtue 
of  a  warrant  of  remand  signed  by  two  Justices  of  the  Peace  in 
and  for  the  Colony  of  Queensland,  and  setting  forth  that  King 
had  been  charged  before  them  with  felony,  and  that  it  had 
appeared  to  them  to  be  necessary  to  remand  him  ;  and  that  the 
said  warrant  commanded  the  gaoler  to  receive  King  into  his 
custody,  and  there  keep  him  until  the  25th  day  of  February, 
when  he  was  thereby  commanded  to  have  King  at  the  Police 
Office,  Brisbane,  at  10  o'clock  in  the  forenoon,  before  the  said 
justices,  or  before  such  other  justices  or  justice  of  the  peace 
for  the  said  Colony  ^s  might  then  be  there,  to  answer  further 
the  said  charge.  The  depositions  taken  before  the  justices 
were  also  returned,  and  from  them  it  appeared  that  King  was 
taken  into  custody  by  the  Chief  Constable  of  the  Brisbane  Police, 
on  the  17th  February,  1860,  on  suspicion  of  having  caused  the 
death  of  one  Nicholas  Deer,  at  Maryland,  in  the  Colony  of  New 
South  Wales,  by  inflicting  a  wound  on  his  body  with  shears, 
or  some  such  instrument,  on  or  about  the  25th  November,  1859, 
It  appeared  also  that  he  had  been  committed  by  the  Warwick 
Bench  of  Magistrates  to  take  his  trial  for  the  offence  at  Brisbane, 
and  that  at  the  Brisbane  February  Assize  he  had  been  discharged 
by  the  order  of  the  Judge,  upon  the  statement  of  the  Attorney- 
General  that  he  had  no  charge  to  make  against  the  prisoner, 
on  account  of  want  of  jurisdiction. 

Mr.  Blakeney  was  heard  on  King's  behalf,  and  the  Attorney- 
General  argued  the  case  on  the  part  of  the  Crown,  citing  the 
dictum  of  Heath  J.  in  Mure  v.  Kay  (4  Taunt.  43)  ;  Burn's  Justice, 
Tit.,  Habeas  Corpus  ;   Ex  parte  Krans  (1  B.  &  C.  258,  2  D.  &  E. 


CRIMINAL  REPORTS,  1860-1907.  > 

411),  Rex  V.  Marks  (3  East.  157),  Ex  'parte  Scott  (9  B.  &  C.  446,      ^K-  "■  ^Ma, 

^                     ^                                    £xpartfi  Kino. 
4  M.  &  R.  361).     On  account  of  the  great  importance  of  the  

question,  the  Court  took  time  to  consider  and  prepare  a  written  "  ^^"^ 

judgment,  which  I  shall  now  deliver. 

I  am  of  opinion,  in  the  first  place,  that  no  constable  has  power  to 
arrest  any  person  on  suspicion  of  his  having  committed  a  felony 
beyond  the  territorial  limits  of  the  colony,  unless  such  felony  be 
supposed  to  have  been  committed  upon  the  high  seas,  and  within 
the  limits  of  the  Admiralty  jurisdiction  of  the  Supreme  Court. 
The  cases  which  establish,  in  general  terms,  that  a  constable  may 
without  warrant  arrest  a  person  upon  a  reasonable  suspicion 
of  felony  (See  Davis  v.  Russell,  5  Bing.  354,  2  M.  &  P.  590  ; 
Beckwith  v.  Philby,  6  B.  &  C.  635,  9  D.  &  R.  487)  will  not  be 
found  to  support,  if  carefully  examined,  the  universal  application 
of  the  rule.  The  "  great  original  and  inherent  authority  with 
regard  to  arrests  "  (4  Steph.  Comm.  359),  which  a  constable 
undoubtedly  possesses,  is  limited  by  the  boundaries  of  the  state 
or  dominion  in  which  he  holds  his  office.  If  the  law  were  other- 
wise, the  power  of  arrest  on  suspicion  might  become,  in  this 
part  of  the  globe,  an  engine  of  the  most  grievous  oppression.  It 
is  clear  that  if  such  a  power  exists,  in  reference  to  felonies  com- 
mitted out  of  the  colony,  it  might  be  exercised  wherever  a  felony 
has  been  committed,  or  is  supposed  to  have  been  committed, 
in  any  part  of  the  British  Empire,  to  say  nothing  of  the  dominions 
of  foreign  powers.  Is  a  man,  then,  to  be  arrested  and  committed 
to  gaol  in  this  colony  because  the  constable  has  received  informa- 
tion which  leads  him  to  suspect  that  his  prisoner  was  concerned 
in  some  felony  at  Delhi  or  British  Columbia  ?  And,  if  com- 
mitted to  gaol,  how  long  is  he  to  be  kept  there  ?  This  Court 
would  not  have  any  jurisdiction  to  try  him  for  the  offence.  Is  he  to 
abide  in  gaol  untU  the  authorities  of  some  distant  portion  of  the 
Empire  have  been  communicated  with,  and  have  signified  their 
intention  to  remove  him  at  the  first  convenient  opportunity  ? 
Common  sense,  which  is  very  often  found  in  the  closest  alliance 
with  the  law  of  England,  revolts  at  the  suggestion  of  imprisoning 
a  man  for  twelve  or  eighteen  months  before  trial ;  yet,  if  the 
imprisonment  be  designed  to  insure  his  being  brought  to  trial,  as 
long,  or  even  a  longer  interval  would  occasionally  elapse. 

It  was  contended,  however,  on  the  part  of  the  Crown,  that, 


4  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

E.  «  Kino,       assuming  the  caption  to  have  been  improperly  efeected,  yet  if  a, 
Mx  parte  Kino.  ^  ^  \       n        t-       ■^^  ^ 

corpus  delicti  appear  on  the  depositions,  the  Court  wui  remana 

Lutwyche  J.  ^^^  prisoner.  But  what  is  meant  by  a  corpus  delicti  1  My 
opinion  is  clear  that  it  can  only  apply  to  some  offence  committed 
within  the  jurisdiction  of  the  Court.  From  the  depositions  it 
appears  that  the  felony  with  which  King  stood  charged  before 
the  justices  was  committed  in  Maryland,  then  and  now  within 
the  colony  of  New  South  Wales,  on  the  25th  November  last.  Upon 
the  proclamation  of  the  Queen's  letters  patent  on  the  lOtn 
December  following,  the  district  of  Moreton  Bay  was  separated 
from  New  South  Wales,  and  became  a  distinct  dominion  under 
the  name  of  Queensland.  An  appeal  no  longer  lies  from  its 
Supreme  Court  to  the  Supreme  Court  at  Sydney,  and  the  con- 
current jurisdiction  within  twenty-five  miles  of  each  side  of  the 
border  line  with  which  the  Judges  of  each  Court  were  invested, 
has,  by  force  of  the  Act  of  Separation,  been  abolished.  The  offence 
charged  is  shown,  therefore,  to  have  been  committed  within  a 
foreign  dominion,  and  as,  according  to  the  common  law  of  Eng- 
land, "  criminal  offences  are  considered  as  altogether  local,  and  are 
justiciable  only  by  the  Courts  of  that  country  where  the  offence  is 
committed  "  (See  "Wheaton's  Elements  of  International  Law,"  6th 
Ed.,  1857,  p.  175),  King  can  only  be  tried  by  the  Court  of  New 
South  Wales  ;  and  no  such  corpus  delicti  appears  on  the  face  of 
the  depositions  as  would  justify  this  Court  in  remanding  the 
prisoner  to  custody. 

The  Court  was  pressed  by  the  Attorney-General  to  remand  the 
prisoner  on  another  ground,  viz.  : — The  obligation  imposed  by 
the  law  of  nations  to  assist  in  bringing  a  criminal  to  justice, 
'  and  he  relied  on  a  dictum  of  Mr.  Justice  Heath,  who,  in  the  case 

of  Mure  v.  Kay  (supra),  is  reported  to  have  said  : — "  It  has- 
been  generally  understood  that  wheresoever  a  crime  has  been 
committed,  the  criminal  is  punishable  according  to  the  lex  loci 
of  the  country  against  the  law  of  which  the  crime  was  committed  ; 
and  by  the  comity  of  nations,  the  country  in  which  the  criminal 
has  been  found,  has  aided  the  police  of  the  country  against 
which  the  crime  was  committed  in  bringing  the  criminal  to  punish- 
ment. In  Lord  Loughborough's  time,  the  crew  of  a  Dutch 
ship  mastered  the  vessel  and  ran  away  with  her,  and  brought 
her  into  Deal ;    and  it  was  a  question  whether  we  could  seize 


CRIMINAL  REPORTS,  1860-1907.  £ 

them,  and  send  them  to  Holland  ;    and  it  was  held  we  might.     „K-  "■  -ij", 

Ex  parte  King. 
And  the  same  has  always  been  the  law  of  all  civilized  countries."  — 

The  reputation  of  Taunton,  as  a  reporter,  does  not  stand  very  ^ 

high,  and  it  is,  therefore,  possible  that  he  may  have  misunder- 
stood what  fell  from  the  learned  Judge,  and  have  stated  too 
broadly  the  general  proposition.  Of  the  grounds  of  the  decision 
in  the  particular  case  referred  to,  we  are  not  informed  ;  but  it 
may  be  observed  that  there  may  be  Acts  within  the  competency 
of  a  sovereign  state  which  could  not  be  constitutionally  under- 
taken by  a  dependent  dominion  like  a  colony.  At  all  events, 
whatever  may  be  the  value  of  the  precedent  in  a  case  of  piracy, 
it  does  not  establish  the  position  that,  "  by  the  comity  of  nations, 
the  country  in  which  the  criminal  has  been  found,  has  aided  the 
police  of  the  country  against  which  the  crime  was  committed 
in  bringing  the  criminal  to  punishment."  On  the  contrary, 
both  a  priori  reasoning  and  the  evidence  of  indisputable  facts 
point  to  the  conclusion  that  such  an  obligation  has  not  yet  been 
imposed  by  that  code  which  we  call  the  law  of  nations.  A  much 
higher  authority  than  Mr.  Justice  Heath — I  refer  to  that  dis- 
tinguished publicist,  Mr.  Wheaton — states  the  question  thus  :  He 
says  (pp.  176-7),  "  The  public  jurists  are  divided  upon  the  question 
how  far  a  sovereign  state  is  obliged  to  deliver  up  persons,  whether 
its  own  subjects  or  foreigners,  charged  with  or  convicted  of  crimes 
committed  in  another  country,  upon  the  demand  of  a  foreign  state, 
or  of  its  officers  of  justice.  Some  of  these  writers  maintain  the 
doctrine  that,  according  to  the  laws  and  usage  of  nations,  every 
sovereign  state  is  obliged  to  refuse  an  asylum  to  individuals 
accused  of  crimes  affecting  the  general  peace  and  security  of 
society,  and  whose  extradition  is  demanded  by  the  Government 
of  that  country  within  whose  jurisdiction  the  crime  has  been 
committed.  Such  is  the  opinion  of  Grotius,  Heineccius,  Bur- 
lamaqui,  Vattell,  Rutherforth,  Schmelzing,  and  Kent.  Accord- 
ing to  Puffendorf,  Voet,  Martens,  Kliiber,  Leyser,  Kluitt, 
Saalfield,  Schmaltz,  Mittenmeyer,  and  Heffter,  on  the  other 
hand,  the  extradition  of  fugitives  from  justice  is  a  matter  of 
imperfect  obligation  only  ;  and  though  it  may  be  habitually 
practised  by  certain  states,  as  the  result  of  mutual  comity  and 
convenience,  it  requires  to  be  confirmed  and  regulated  by  special 
compact,  in  order  to  give  it  the  force  of  an  international  law  ;  and 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 

B.  V.  King,       the  last  mentioned  learned  writer  considers  the  very  fact  of  the 
Ex  parte  Kisa.  .   ,  ,.  a.-         i.i.-  it 

existence  of  so  many  special  treaties  respecting  this  matter  as 

Lutwyohe  J.  conclusive  evidence  that  there  is  no  such  general  usage  among 
nations,  constituting  a  perfect  obligation,  and  having  the  force  of 
law  properly  so  called.  Even  under  systems  of  confederated 
states,  such  as  the  Germanic  Confederation,  and  the  North 
American  Union,  this  obligation  is  limited  to  the  cases  and  con- 
ditions mentioned  in  the  federal  compacts.  The  negative  doctrine^ 
that,  independent  of  special  compact,  no  state  is  bound  to  deliver 
up  fugitives  from  justice  upon  the  demand  of  a  foreign  state, 
was  maintained  at  an  early  period  by  the  United  States  Govern- 
ment, and  is  confirmed  by  a  considerable  preponderance  of 
judicial  authority  in  the  American  Courts  of  Justice,  both  state 
and  federal." 

The  "  negative  doctrine  "  thus  maintained  in  the  United  States 
has  been  tacitly  recognised  of  late  years  by  England,  France,  and 
Prussia,  who  have  entered  into  treaties  with  the  United  States  for 
the  extradition  of  criminals  charged  with  certain  specified  offences. 
A  treaty  has  also  been  made  between  England  and  France  for  the 
same  object,  and  the  Acts  of  the  Imperial  Parliament,  6  and  7 
Vic,  c.  75  and  c.  76,  were  passed  to  carry  into  effect  the  con- 
ventions with  France  and  the  United  States  for  that  purpose. 
By  entering  into  treaties  on  the  subject,  each  of  these  powers 
has,  I  conceive,  admitted  that  a  special  compact  was  necessary 
to  obtain  the  object  desired ;  by  limiting  the  scope  of  the  treaty 
to  a  certain  class  of  offenders,  each  country  practically  asserted 
its  right  to  afford  an  asylum  to  all  other  fugitives  from  justice. 
Political  offences  affect  as  much  as  any  other,  sometimes  much 
more,  the  general  peace  and  security  of  society  ;  yet,  it  is  well 
known  that  England  has  never  felt  herself  obliged,  by  the  comity 
of  nations,  to  assist  the  police  of  the  country  against  which  the 
political  crime  was  committed  in  bringing  the  criminal  to  punish- 
ment, even  though  the  crime  amounted  to  high  treason. 

Enough,  then,  has  been  said  to  show  that  a  constable  cannot 
arrest  any  person  on  suspicion  of  a  felony  committed  beyond  the 
limits  of  the  dominions  to  which  he  himself  belongs  ;  that  the 
Court  cannot  remand  the  prisoner  when  it  has  no  jurisdiction 
to  try  him  for  the  felony  alleged  to  have  been  committed  ;  and 
that  there  is  no  rule  of  the  law  of  nations  which  requires  the 


CRIMINAL  REPORTS,  1860-1907.  ' 

Court  to  assist  the  police  of  a  foreign    dominion    in    bringing     _^-  ^-  ;^"''' 

„     J               .                                                                                                           Ex  parte  King. 
OEfenders  to  justice.     There  are,  however,  two  enactments,    one  

a  Colonial  Act  of  Council,  the  other  an  Imperial  Statute,  which  '^^^ 

must  be  noticed,  inasmuch  as  the  former  (2  Vic,  No.  11,  Call.  501) 
bears  out  the  view  taken  by  the  Court,  and  shows  specific  legis- 
lation on  the  subject  to  have  been  considered  necessary  ;  while 
the  latter  (6  and  7  Vic,  c.  34,  amended  by  16  and  17  Vic,  o. 
118)  points  out  the  course  which  ought  to  have  been  adopted 
in  the  present  case,  and  which  must  be  pursued  in  future.* 

The  object  of  the  Colonial  Act,  2  Vic,  No.  11,  is  well  indicated 
by  its  title,  "  an  Act  to  facilitate  the  apprehension  of  offenders 
escaping  from  the  Island  of  Van  Dieman's  Land,  or  from  South 
Australia,  to  the  colony  of  New  South  Wales."  It  is  unnecessary 
to  recapitulate  its  provisions,  as  the  Act  itself  has  been  virtually 
repealed  by  the  Imperial  Act  subsequently  passed,  6  and  7  Vic, 
c.  34.  That  Act,  which  was  not  mentioned  during  the  argument, 
now  extends  to  all  felonies  (see  16  and  17  Vic,  c  118),  and  the 
sections  material  to  the  present  matter  are  ss.  2,  3,  4,  5,  6,  and 
9.  These  sections  are  set  out  at  length  in  Oke's  Magisterial 
Synopsis,  6th  Ed.,  1858,  pp.  640-645,  and  it  will  be  seen  that, 
while  they  effectually  provide  for  the  apprehension  of  offenders 
flying  from  justice,  they  also  furnish  ample  safe-guards  for  the 
liberty  of  the  subject.  No  person  who  has  committed  a  felony, 
not  triable  by  this  Court,  can  be  arrested  in  the  colony  of  Queens- 
land, except  a  warrant  against  him  has  first  been  issued  by  some 
person  or  persons  having  lawful  authority  to  do  so.  This  warrant 
must  be  brought  to  the  Judge  of  the  Supreme  Court,  who  is  to 
require  proof  on  oath  or  affidavit  that  the  seal  or -signature  in  the 
warrant  is  the  seal  or  signature  of  the  person  whose  seal  or 
signature  the  same  purports  to  be.  On  such  proof  being  given,  the 
Judge  is  to  endorse  his  name  on  such  warrant,  which  warrant,  so 
endorsed,  is  to  be  a  sufficient  authority  to  the  person  or  persons 
bringing  such  warrant,  and  also  to  all  persons  to  whom  such 
warrant  was  originally  directed,  and  also  to  all  peace  officers  of 
the  place  where  the  warrant  shall  be  so  endorsed,  to  execute  the 
same  within  the  jurisdiction  of  the  Judge,  by  apprehending  the 
person  against  whom  such  warrant  was  directed,  and  to  convey 
him  before  a  magistrate,  or  other  persons  having  authority  to 


*  See  now  44  and  45  Vic,  c.  69  (P.  &  W.  3122). 


R.  V.  EiKG, 
Ex  parte  King. 

Lutwyche  J. 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 

examine  and  commit  offenders  for  trial  in  this  colony.  The 
magistrate  is  then  authorised,  upon  such  evidence  of  criminality 
as  would  justify  his  committal  if  the  offence  had  been  com- 
mitted in  Queensland,  to  commit  the  offender  to  prison  until  he 
can  be  sent  back  to  that  part  of  her  Majesty's  dominions  in  which 
he  is  charged  with  having  committed  such  ofiEence  ;  and  immedi- 
ately upon  his  committal,  information  thereof,  in  writing,  under 
the  hand  of  the  committing  magistrate,  accompanied  by  a  copy 
of  the  warrant,  is  to  be  transmitted  to  the  Governor  of  the  colony. 
The  Governor  may  then,  by  warrant,  under  his  hand  and  seal, 
order  the  person  so  committed  to  be  delivered  into  the  custody 
of  some  person  or  persons,  to  be  named  in  his  warrant,  for  the 
purpose  of  being  conveyed  into  that  part  of  her  Majesty's 
dominions  in  which  he  is  charged  with  having  committed  the 
offence,  there  to  be  dealt  with  in  due  course  of  law ;  and  if  the 
person  so  committed  to  gaol  be  not  conveyed  out  of  the  colony 
accordingly,  within  two  calendar  months  after  his  committal, 
he.  may,  on  application  to  the  Judge,  be  discharged. 

The  result  of  the  present  application  is  that  the  Court  holds 
the  prisoner  to  be  entitled  to  his  discharge. 


1860. 

23rd  February. 
1st  March. 

Lutwyche  J, 


R.  V.  WHITE,  Ex  parte  SIDNEY. 

[1  S.C.R.  9.— Note.— 13  Vic,  No.  29  and  17  Vic,  No  6,  are  repealed.  See  now  s. 
109  of  Licensing  Act  of  1885  (49  Vic,  No.  18).  22  Vic,  No.  7,  mentioned  by 
Lutwyche  J.,  has  been  repealed,  see  now  s.  3  of  Criminal  Law  Amendment 
Act,  1892  (56  Vic,  No.  3)J. 

Criminal  proceedings — Justices'  refusal  to  hear  evidence— The 
Licensed  Publicans'  Act  of  1849  (13  Vic.,  No.  29),  ss.  2,  69— 
— -17  Vic,  No.  6,  s.  3 — Sale  of  liquor  in  quantity  not  being 
less  than  two  gallons. 

Whenever  a  statute  authorises  the  imprisonment  of  an  offender  against  its 
provisions,  whether  it  be  as  the  primary  punishment  for  the  offence,  or  as 
punishment  in  the  last  resort,  the  proceedings  against  him  must  be  regarded  as  a 
criminal  proceeding. 

Application  on  behalf  of  John  Sidney  for  a  writ  of  prohibition 
against  J.  C.  White  and  C.  Coxen,  Justices,  and  James  Shelton, 


CEIMINAL  REPOETS,  1860-1907.  9 

prosecutor,   to  restrain  further  proceedings  upon  a   conviction      R-  "•  White, 

1       ,  r.  TT.       -.,      ~                                            o        J.                                      ^^  parte  Sidney. 
under  13  Vic,  No,  29,  s.  2,  of  the  said  John  Sidney.  

Blakeney,  for  applicant,  to  move  rule  absolute. 

Pring  A.Q.  to  show  cause. 

The  facts  and  arguments  of  counsel  appear  fully  in  the 
judgment  of  the  learned  Judge. 

C.A.V. 

1st  March,  1860. 

LuTWYCHE  J.  :  The  applicant  had  been  convicted  under  the  Act  Lutwyche  J. 
13  Vic,  No.  29,  s.  2,  for  selling  two  bottles  of  rum,  he  not  then 
having  a  publican's  general  license  ;  and  a  rule  nisi  for  a  prohibi- 
tion was  subsequently  granted  upon  the  following  grounds  :— 
1st.  That  the  justices  improperly  refused  to  hear  the  evidence 
■of  the  wife  of  the  applicant,  which  was  tendered  on  his  behalf. 
2nd.  That  neither  in  the  information,  nor  the  conviction,  was 
it  alleged  that  the  quantity  disposed  of  was  less  than  two  gallons. 

Cause  was  shown  against  the  rule  on  the  second  day  of  Term 
(Thursday,  February  23),  and  it  was  agreed  on  both  sides  that  the 
judgment  of  the  Court,  whenever  delivered,  should  be  taken 
as  of  the  Term. 

The  first  point  turns  upon  the  meaning  of  the  words  in  the 
3rd  section  of  the  Act  22  Vic,  No.  7,  which  provides  that  nothing 
in  the  Act  shall  render  any  wife  competent  or  compellable  to  give 
evidence  for  or  against  her  husband  in  any  criminal  proceedings. 
It  was  contended  by  Mr.  Blakeney,  on  the  part  of  the  applicant, 
that  the  proceedings  against  him  under  the  Act  of  CouncU  above 
mentioned  was  not  a  criminal  proceeding,  because  the  primary 
punishment 'contemplated  by  the  Act  was  a  pecuniary  penalty. 
The  cases,  however,  which  he  cited  Attorney -General  v.  Badloff, 
10  Ex.  84 ;  23  L.J.,  Ex.  240 ;  10  Jur.  555 ;  Easton's  Case,  12 
Ad.  &  Ell.  645 ;  A.G.  v.  Siddon,  1  C.  &  J.  220 ;  Backham  v. 
Bluck,  9  Q.B.  691),  fail  to  establish  this  position.  In  the 
Attorney-General  v.  Badloff,  the  Court  of  Exchequer  was  divided 
n  opinion  whether  an  information  for  penalties  under  the 
Smuggling  Acts,  at  the  suit  of  the  Attorney-General,  was  a 
criminal  proceeding  punishable  on  summary  conviction.  No 
inference  is  deducible,  therefore,  either  way,  from  that  case.  In 
Easton's  case,  the  decision  of  the  Court  was,  that  a  person  sen- 


10 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


K.  I'.  White, 
Ex  parte  Sidney. 

Lutwyehe  J. 


tenced  by  two  Justices  to  imprisonment  with  hard  labour,  under 
the  Smuggling  Act,  is  in  execution  in  a  criminal  matter.  That 
case,  consequently,  does  not  assist  the  applicant.  The  observa- 
tions of  Mr.  Baron  Bayley,  in  the  Attorney-General  v.  Siddon, 
merely  go  to  show  that  an  information  for  penalties  at  the  suit 
of  the  Attorney-General  is  a  civil  and  not  a  criminal  proceeding  ; 
and  Rackham  v.  Bliick  only  decides  that  a  proceeding  in  the 
Consistorial  Court,  to  recover  penalties  against  a  clergyman  for 
non-residence,  is  a  civU  and  not  a  criminal  suit.  In  none  of 
these  cases  was  the  pecuniary  penalty  the  primary  punishment 
of  the  offence  ;  it  was  the  sole  punishment.  And  I  am  of  opinion 
— an  opinion  borne  out  even  by  the  authorities  cited  in  support 
of  the  application — that  whenever  a  statute  authorises  the 
mprisonment  of  an  offender  against  its  provisions,  whether  it  be 
the  primary  punishment  of  the  offence,  or  punishment  in  the  last 
resort,  the  proceeding  against  him  must  be  regarded  as  a  criminal 
proceeding.  In  Easton's  case  (12  Add.  Ell.  648),  Lord  Denman 
says  :  "  This  must  be  called  a  criminal  matter  ;  the  party  is 
sentenced  to  imprisonment  with  hard  labour,  which  puts  the 
point  beyond  a  doubt."  And  in  the  Attorney-General  v.  Radloff 
(23  L.J.  (Ex.)  248),  Mr.  Baron  Piatt,  whose  judgment  was  cited 
in  support  of  the  application,  puts  the  distinction  between  civU 
and  criminal  proceedings  as  turning  upon  the  liability  to  im- 
prisonment. The  69th  section  of  the  Act  under  which  the  applicant 
was  convicted,  authorises,  in  the  event  of  non-payment  of  the 
penalty  imposed,  a  distress  upon  the  offender's  goods,  and,  in 
case  of  the  distress  being  insufficient,  imprisonment  of  his  person 
for  a  limited  period.  And  the  Act,  17  Vic,  No.  6,  s.  3,  empowers 
the  Justices,  in  all  cases  of  conviction  under  the  Act,  13  Vic, 
No.  29,  s.  2,  to  add  imprisonment,  in  the  first  instance,  to  the 
pecuniary  penalty.  There  can  be  no  doubt,  therefore,  that  this 
was  a  criminal  proceeding,  and  the  Justices  properly  refused 
to  hear  the  evidence  of  the  applicant's  wife. 

The  second  point  is  of  less  importance,  and  may  be  disposed  of 
shortly.  The  objection  to  the  proceedings  is  that  neither  the 
information  nor  the  conviction,  based  upon  the  second  section 
of  the  Act,  alleges  a  matter  which  is  made  the  subject  of  excep- 
tion in  the  third  section,  and  declares  that  the  quantity  dis- 
posed of  was  less  than  two  gallons.     It  may  be  worthy  of  con- 


CRIMINAL  REPOETS,  1860-1907.  11 

sideration  whether  such  an  allegation  would  be  in  any   case      R-  ^-  Whitb, 

Ex  parte  Sidney 
necessary,  and  whether  it  would  be  not  incumbent  on  the  party  

accused  to  bring  himself  within  the  exception,  and  to  show  LutwyoheJ. 
that  he,  being  a  person  within  a  proclaimed  place,  sold  a  quantity 
of  spirits,  not  being  less  than  two  gallons.  But  I  do  not  decide 
that  point  now.  My  judgment  is  founded  upon  the  fact  that  the 
proceedings  before  the  convicting  magistrates  were  had  by 
summons,  and  that  in  such  summons  the  general  nature  of  the 
complaint  was  succinctly  stated,  pursuant  to  the  proviso  in 
the  69th  section  of  the  Act  13  Vic,  No.  29.  A  formal  informa- 
tion in  writing  had  been  exhibited  before  the  magistrate  who 
issued  the  summons,  but  it  was  not  used  afterwards  ;  and,  conse- 
quently, the  defendant  could  not  have  been  placed  in  a  worse 
position  than  if  the  complaint  had  originally  been  made  orally. 
Credit  may  be  given  to  the  Court  for  knowing  enough  of  the 
common  affairs  of  life  to  take  cognizance  that  two  bottles  of 
rum  fall  short  of  the  quantity  of  two  gallons.  The  summons 
gave  the  magistrates  jurisdiction,  and  in  so  plain  a  case  every 
intendment  ought  to  be  made  in  favour  of  its  exercise. 
The  rule  for  a  prohibition  is  accordingly  discharged. 


R.  V.  WILSON,  Ex  parte  FERRET. 

[1  S.C.R.  12.— Note See.  8  of  17  Vie.,  No,  3,  Is  repealed,  see  now  s.  445  ol 

Criminal  Code.] 

Prohibition — Illegally   branding — 17  Vic,  No.  3,  ss.  3,  10 — Costs  i860. 

against  justices.  30th  April. 

A  conviction  under  s.  6  of  17  Vic,  No.  3,  of  the  "  illegal  possession  and  branding        Lutwyche  J. 
of  a  filly  "  is  bad. 

Where  magistrates  retain  counsel  to  support  a  conviction  after  the  Attorney- 
General  has  advised  that  the  conviction  cannot  be  sustained,  and  a  writ  of 
prohibition  is  granted,  they  are  liable  for  costs. 

Motion  on  behaK  of  John  Ferret  to  make  absolute  a  rule  nisi  for 
a  writ  of  prohibition  against  John  Kerr  Wilson,  Henry  William 
Coxen,  and  William  Giles  Gordon,  Justices,  and  William  Miles,  to 
restrain  further  proceedings  on  an  order  by  the  said  justices 
against  the  said  applicant,  and  to  recover  from  the  said  justices 
the  costs  of  the  appUcation. 


]2 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


R.  o.  Wilson, 
Ex  parte  Fbbbbt. 


Latwyohe  J. 


The  facts  and  arguments  appear  suificiently  in  the  judgment. 

Blakeney,  for  the  defendant,  moved  rule  absolute. 

Lilley  appeared  for  the  justices,  to  show  cause. 
C.A.V. 

LtTTWYCHE  J.  :  A  rule  was  obtained  on  the  6th  of  February  last, 
on  the  part  of  John  Ferret,  calling  on  the  abovenamed  justices, 
and  William  Miles,  to  show  cause  why  they  should  not  be  pro- 
hibited from  proceeding  on  a  conviction  pronounced  against 
Ferret  on  the  21st  January  last,  and  why  a  fine  of  £10  and  costs 
should  not  be  refunded. 

The  information  and  conviction  (under  the  Act  of  Council 
17  Vic,  No.  3,  s.  6),  described  Ferret's  offence  as  the  "  illegal 
possession  and  branding  of  a  filly,"  and  consequently  the  infor- 
mation and  the  conviction  are  bad  on  the  face  of  them,  as  pointed 
out  in  the  fourth  ground  upon  which  the  rule  was  obtained. 
The  offence  described  in  the  section  is  a  "  taking,  using,  or 
working  "  of  cattle  without  the  owner's  consent ;  but  instead 
of  following  the  words  of  the  Act,  as  s.  10  prescribes,  the  infor- 
mation and  conviction  charge  an  illegal  possession  and  branding, 
which  might  indeed  be  evidence  of  a  taking,  or  using,  without  the 
owner's  consent,  but  which  is  not  declared  by  the  Act  to  be  an 
offence  per  se.  The  point  is  so  clear  that  I  should  not  have 
thought  it  necessary  to  deliver  a  written  judgment,  if  Mr. 
Blakeney  had  not  applied  for  the  costs  of  the  day  against  the 
magistrates,  who  had  retained  Mr.  Lilley  to  appear  in  support 
of  the  conviction,  after  having  been  officially  informed  by  the 
Attorney-General  that  the  conviction  could  not  be  sustained.  The 
applicant  was  thereby  put  to  unnecessary  expense  in  employing 
counsel  to  support  the  rule  ;  and  if  this  had  not  been  the  first  time 
that  the  question  had  arisen,  I  should  have  made  the  rule  for  a 
prohibition  absolute,  with  the  costs  of  the  day  to  be  paid  by  the 
magistrates.  But  it  must  be  distinctly  understood  that,  in  future, 
the  magistrates  will  be  visited  with  costs,  if  the  conviction  be 
quashed,  whenever  they  choose  to  employ  counsel  •to  support 
their  view  of  the  law,  after  having  been  informed  by  the  highest 
legal  authority  at  the  bar  that  the  matter  is  not  arguable.  Their 
official  position  enables  them  to  obtain  gratuitously  the  advice 
and  assistance   of  the   Attorney-General,   and  if  he  tel  s  them 


CRIMINAL  REPORTS,  1860-1907.  13 

they  have  mistaken  the  law,  as  all  men  may  do  sometimes,  they     K.  v.  Wilson, 

,                         .                                                                                                              Ex  parte  FssRET. 
ought  to  acquiesce,   and  not  oppress  a  person  who  has  been  

illegally  convicted  by  putting  him  to  expense  which  he  may  not       Lutwyohe  J. 

be  so  well  able  to  afford  as  themselves.     In  the  present  case, 

however,  the  rule  for  a  prohibition  must  be  made  absolute  without 

costs. 


R.  V.  PUGH. 


[1  S.C.R.  63.— Note.— See  now  ss.  44  and  52  ol  Criminal  Code.  11  Vic,  No.  13, 
s.  10,  referred  to  in  tlie  judgment,  is  repealed,  see  now  s.  376  ol  Ciiminal  Code. 
Also  25  Vic,  No.  17,  and  13  Vic,  No.  8,  mentioned  in  the  judgment,  are  since 
repealed.] 

Seditious    libel — Information    by    Attorney -General,    ex   officio,    by  1862. 

resolution  of  the  Legislative  Council — Charge  to  jury  in  trial  aSrd^Augmt. 

for  seditious  libel — Law  and  custom  of  Parliament — 32  Oeo.  Luucyche  J. 
III.,  c.  60,  s.  1. 

The  Attorney-General,  ex  officio,  by  direction  of  the  Legislative  pouncil  of 
Queensland,  filed  an  information  against  the  printer  and  publisher  "of  a  newspaper, 
for  an  alleged  seditious  libel  on  that  body. 

LuTWYCHE,  J.,  charged  the  jury  that  a  seditious  libel  could  not  be  published 
of  and  concerning  the  Legislative  Council. 

Ikfoemation  presented  by  the  Attorney-General,  ex  officio,  at 
the  request  of  the  Legislative  Council,  against  Theophilus  Parsons 
Pugh,  for  having  printed  and  pubHshed  in  the  Courier,  on  30th 
July,  1861,  a  seditious  Ubel  of  and  concerning  the  Legislative 
Council    of    Queensland. 

Pring  A.G.  and  Bramston  prosecuted. 

Gore  Jones  and  Carey  for  the  defendant. 

A  plea  that  the  Court  had  no  jurisdiction,  as  being  illegally 
constituted,  was  overruled.  The  learned  Judge  stated  that  he 
held  his  commission  under  the  Imperial  Statute,  18  and  19  Vic, 
c.  54,  and  referred  to  the  order  of  Council  of  5th  June,  1861. 

A  plea  of  not  guilty  was  then  entered. 

LxTTWYCHE   J.,   at  the  conclusion  of  the  trial,   delivered  the       ^    ,       ,     ^ 

Lutwyohe  J, 
following  charge  to  the  jury  :— 


14 


QUEENSLAND   JUSTICE   OF   THE   PEACE. 


PUGH 


Lutwyche  J. 


Gentlemen  of  the  jury.— The  defendant  in  this  case,  Theophilus 
Parsons  Pugh,  is  charged  by  the  Attorney-General,  acting  ex  officio, 
with  the  publication  of  a  false,  scandalous,  malicious,  and  seditious 
libel  in  the  Courier  of  30th  July  last,  of  and  concerning  the  Legis- 
lative Coiincil  of  this  colony.  The  defendant  has  pleaded  "  not 
guilty  "  to  the  information  which  has  been  filed,  and  you  are  to 
say  by  your  verdict  whether  you  think  the  defendant  has  pub- 
lished a  seditious  libel  or  not.  There  are  reasons,  gentlemen,  for 
desiring  that  this  case  should  have  been  tried  before  any  other 
Judge  than  myself.  The  article  in  the  Courier,  which  is  alleged 
to  reflect  in  a  seditious  manner  on  the  Legislative  Council,  con- 
tains a  warm  defence  of  the  conduct  of  Mr.  Justice  Lutwyche,  as 
well  as  a  warm  attack  upon  the  conduct  of  the  Legislative  Council, 
in  reference  to  the  present  Judge  of  the  Supreme  Court.  I  am 
placed,  therefore,  in  a  very  invidious  position,  and  the  duty 
M'hich  I  have  to  perform  this  day  is  far  from  being  agreeable  to 
me.  But,  gentlemen,  whether  the  performance  of  a  duty  be  agree- 
able or  not,  a  duty  must  be  discharged,  and  I  shall  endeavour  to 
fulfil  mine  in  such  a  manner  as  to  leave  as  little  occasion  as 
possible  for  unfavourable  comment.  I  shall  deal  with  this  case 
precisely  in  the  same  way,  and  direct  you  on  points  of  law  in  the 
same  terms,  as  if  the  Judge  whose  conduct  has  been  censured  by 
the  Legislative  Council  were  my  colleague  on  the  Bench,  or  say, 
for  instance,  the  gentleman  who  is  senior  in  point  of  standing  at 
the  Bar,  Mr.  Blakeney.  I  shall  pursue  in  this  case  the  same 
course  which  I  have  invariably  followed  ever  since  I  have  had  the 
honour  of  a  seat  on  the  Bench  of  the  Supreme  Court,  in  civil 
actions  for  libel  and  slander.  I  shall  not  express  any  opinion 
of  my  own  upon  the  alleged  calumnious  character  of  the  pubUca- 
tion,  nor  shall  I  say  what  I  think  of  the  conduct  of  the  defendant 
in  relation  to  the  circumstances  which  have  been  disclosed  by  the 
evidence.  But  I  shall  be  bound  to  tell  you  whether  this  pubhca- 
tion,  assuming  it  to  contain  a  false,  scandalous,  and  maUcious 
libel  upon  the  Legislative  Council,  amounts  to  a  seditious  libel,  for 
that,  as  the  case  now  stands,  is  purely  a  question  of  law  ;  and,  as 
there  is  no  appeal  from  my  decision  in  criminal  matters,  I  thought 
it  right,  in  order  that  I  may  neither  be  misunderstood  nor  mis- 
quoted, to  reduce  my  charge  into  writing. 

As  you  will  perceive,  I  have  anticipated  all  the  points  which 
have  been  raised  at  the  bar,  and  have  considered  some  points 
which  have  not  been  urged  by  counsel,  but  which,  nevertheless, 
appear  to  me  necessary  to  be  discussed,  in  order  to  arrive  at  a 


CRIMINAL   REPORTS,   1860-1907.  15 

proper  understanding  of  the  great  constitutional  question  involved       ^-  *'•  P""^- 
in  this  trial.  Lutwyche  J. 

(The  learned  Judge  here  read  over  the  information  and  the 
notes  which  he  had  taken  of  the  evidence,  and  then  proceeded 
as  follows)  : — 

I  am  constrained,  in  the  outset,  to  express  my  disapprobation  of 
the  manner  in  which  this  information  has  been  drawn.  In  the 
copy  which  lies  before  me,  there  is  much  matter  which  does  not 
reflect  on  the  Legislative  Council  in  any  way.  I  suppose,  to  save 
trouble,  it  was  deemed  expedient  to  insert  the  article  in  the 
Courier  entire,  but  such  a  course  is  hardly  fair  towards  a  defendant, 
as  it  must  tend  to  distract  his  attention  from  the  charge  which 
he  has  to  meet,  and  it  swells  the  costs  of  the  defence,  which, 
whether  he  be  convicted  or  acquitted,  the  defendant  will  have  to 
pay.  I  hope  I  shall  not  have  occasion,  in  any  future  prosecution 
for  a  libel,  to  repeat  these  remarks. 

Gentlemen,  the  offence  known  to  the  law  as  libel  consists  in 
the  malicious  publication  of  defamatory  matter,  expressed  either 
in  writing  or  in  printing,  or  by  signs  or  pictures,  and  which 
publication  tends  either  to  corrupt  the  mind  of  the  public,  and 
to  destroy  the  love  of  decency,  morality,  and  good  order  ;  or, 
in  the  case  of  an  individual,  to  expose  him  to  hatred,  ridicule,  or 
contempt.  A  private  individual  may  bring  an  action  to  recover 
damages  for  the  injury  done  to  his  character  by  such  a  publication  ; 
but  the  ground  of  the  criminal  proceeding  is  the  public  mischief 
which  libels  are  calculated  to  create  in  alienating  the  minds  of 
the  people  from  religion  and  good  morals,  and  rendering  them 
hostile  to  the  Government  and  magistracy  of  the  country,  and, 
where  particular  individuals  are  attacked,  in  causing  such  irrita- 
tion in  their  minds  as  may  induce  them  to  commit  a  breach  of 
the  public  peace.  (1  Russell  on  Crimes,  p.  211,  Ed.  1826.)  It 
appears  to  have  been  considered  at  one  time  that  the  remedies 
by  action  and  indictment  for  libels  were  co-extensive,  and  might 
be  regarded  as  upon  the  same  footing,  but  this  could  formerly 
only  have  been  understood  of  cases  where  the  libel,  from  its 
nature  and  subject,  inflicted  a  private  injury,  and  not  of  those 
eases  in  which  the  public  only  could  be  said  to  be  affected  by  the 
libel.  Now,  however,  by  the  Act  11  Vic,  No.  13,  s.  10,  it  is 
provided  that  on  the  trial  of  any  indictment  or  information  for 
a  defamatory  libel,  the  truth  of  the  matters  charged  may  be 
inquired  into,  if  it  be  alleged  by  the  defendant  that  it  was  for  the 
public  benefit  that  the  matters  so  charged  should  be  pubUshed, 


16 


QUEENSLAND   JUSTICE   OF  THE   PEA.CE. 


E.  V.  PoGH.  and  if  he  set  forth  the  particular  fact  or  facts  by  reason  whereof 
Lutv^Se  J.  it  was  for  the  pubUc  benefit  that  the  matters  so  charged  should 
be  pubhshed.  But  this  section  does  not  apply  to  seditious 
libels  (R.  V.  Duffy,  2  Cox  C.C.  45,  Rose  on  Evidence,  p.  655,  Ed., 
1857)  ;  and,  consequently,  in  pleading  to  the  present  information, 
the  defendant  was  restricted  to  the  plea  of  "  not  guilty,"  under 
which  plea  evidence  is  receivable  to  show  either  that  he  never 
published  the  alleged  libel,  or  that  the  matter  contained  in- it  is 
not  seditious,  and  was  justified  by  the  occasion  on  which  it  was 
published.  The  intention  may  be  collected  from  the  libel, 
unless  the  mode  of  pubUcation,  or  other  circumstances,  explain 
it,  and  the  pubhsher  must  be  presumed  to  intend  what  the  publi- 
cation is  Ukely  to  produce,  so  that  if  it  is  likely  to  excite  sedition, 
he  must  be  presumed  to  have  intended  it  to  have  that  effect. 
(Pex  V.  Burdett,  4  B.  &  A.  95). 

Gentlemen,  there  can  be  no  doubt  that  an  information  may  be 
supported  for  the  pubUcation  of  a  false,  scandalous,  and  malicious 
libel  on  the  Legislative  Council  or  the  Legislative  Assembly  of  this 
colony.  The  two  Houses  of  Legislature  have  very  important 
functions  to  discharge,  and  are  on  that  account  entitled  to  con- 
sideration and  respect.  Not  only  do  they  assist  in  the  making  of 
the  laws  by  which  we  are  governed,  but  they  form  the  grand 
inquest  of  the  colony  ;  and,  by  a  recent  colonial  enactment  (25 
Vic,  No.  7),  extensive  powers,  which  did  not  belong  to  them  at 
common  law,  have  been  conferred  on  them  in  order  that  their 
deUberations  may  be  carried  on  in  perfect  tranquility  and  with 
greater  efficacy  than  before.  The  utmost  freedom  of  debate 
is  allowed,  and  any  member  of  either  house  may  say  within  its 
walls  whatever  he  pleases  of  any  person  not  being  a  member, 
without  being  responsible,  either  civilly  or  criminally,  for  the 
consequences.  No  doubt  this  privilege  may  be  abused,  but  no 
human  institution  is  perfect.  Unfortunately,  experience  teaches 
us  that  men  whom  neither  nature  nor  education  have  fitted  for 
the  position,  occasionally  find  their  way  into  Colonial  Legislatures, 
and  even  into  the  Imperial  Parliament.  Men  of  this  stamp, 
sometimes  from  mere  thoughtlessness,  sometimes  from  the 
working  of  an  ill  regulated  mind,  indulge  themselves  by  scurrilous 
attacks  upon  public  and  private  character,  and  knowing  they 
have,  to  quote  the  language  of  Mr.  Justice  Coleridge  {Stockdale  v. 
Hansard,  9  Ad.  and  Ell.  242)  a  legal  monopoly  in  slander,  are  apt 
to  make  the  most  of  the  commodity.  For  all  this  there  is  n" 
redress,  save  in  the  expression  of  public  opinion,  and  public  opinion 


CRIMINAL  REPORTS,   1860-1907.  17 

generally  finds  a  channel  for  expression  in  the  public  press.     The       ^'  ''•^<*°- 
privileged  slanderer  is  not  protected  from  public  criticism,  pro-      Lutwyohe  J. 
vided  the  criticism  be  fair  and  honest.      And  this  rule  applies 
not  merely  to  an  individual  member  of  either  house,  but  to  each 
house  and  both  houses  collectively. 

I  have  said  that  the  Legislature  is  a  grand  inquest  of  the  colony. 
If,  however,  it  should  proceed  without  inquiry — if,  while  acting 
in  a  qiiasi  judicial  manner,  it  should  acscept  surmises  and  insinua- 
tions as  proofs,  and  deal  with  suspicions  as  conclusive  evidence 
— a  public  writer  would  be  justified  in  commenting  upon  such 
conduct  with  freedom,  and  even  with  severity.  "  I  think  it 
quite  right,"  says  Lord  Chief  Baron  Pollock,  in  Gathercole  v. 
Miall  (15  M.  &  W.  332),  "  that  all  matters  that  are  entirely  of  a 
public  nature,  conduct  of  Ministers,  conduct  of  Judges,  the 
proceedings  of  all  persons  who  are  responsible  to  the  pubhc  at 
large,  are  deemed  to  be  pubhc  property,  and  that  aU  bona  fide 
and  honest  remarks  upon  such  persons  and  their  conduct  may 
be  made  with  perfect  freedom  and  without  being  questioned  too 
nicely  for  either  truth  or  justice."  In  the  same  case,  Mr.  Baron 
Alderson  observes  (p.  338),  "  It  seems  there  is  a  distinction, 
although  I  must  say  I  reaUy  can  hardly  tell  what  the  Hmits  of  it 
are,  between  the  comments  on  a  man's  public  conduct  and  upon 
his  private  conduct.  I  can  understand  that  you  have  a  right 
to  comment  on  the  public  acts  of  a  Minister,  upon  the  public 
acts  of  a  general,  upon  the  public  judgment  of  a  judge,  upon  the 
public  skill  of  an  actor — I  can  understand  that ;  but  I  do  not 
know  where  the  limit  can  be  drawn  distinctly  between  where  the 
comment  is  to  cease,  as  being  applied  solely  to  a  man's  conduct, 
and  where  it  is  to  begin,  as  applicable  to  his  private  character  ; 
because,  although  it  is  quite  competent  for  a  person  to  speak 
of  a  judgment  of  a  judge  as  being  an  extremely  erroneous  and 
foolish  one  (and,  no  doubt,  comments  of  that  sort  have  a  great 
tendency  to  make  persons  careful  of  what  they  say)  ;  although 
it  is  perfectly  competent  for  persons  to  say  of  an  actor  that  he  is  a 
remarkably  bad  actor,  and  ought  not  to  be  permitted  to  perform 
such  and  such  parts  so  ill ;  yet  you  ought  not  to  be  allowed  to 
say  of  an  actor  that  he  has  disgraced  himself  in  private  life, 
nor  to  say  of  a  judge  or  Minister  that  he  has  committed  felony, 
or  anything  of  that  description  which  is  no  way  connected  with 
•iis  public  conduct  or  pubhc  judgment."  And,  therefore,  gentle- 
men, if  any  pubhc  writer,  or  speaker  at  a  pubhc  meeting,  should 
comment,  as  he  has  a  perfect  right  to  do,   on  the  proceedings 


18 


QUEENSLAND   JUSTICE   OP   THE    PEACE. 


E.  V.  Pdqh. 
Lutwyche  J. 


of  either  house  of  the  legislature,  or  on  the  conduct  of  members  of 
either  house,  he  must  confine  his  remarks  to  their  behaviour  as 
public  bodies  and  pubho  men.  He  would  not  be  justified,  for 
instance,  in  saying  of  one  member  that  he  was  a  murderer  (see 
Harwood  v.  Sir  J.  Astley,  1  B.  &  P.  N.R.  47),  or  of  another,  that  he 
was  an  adulterer,  a  gambler,  and  a  drunkard  ;  or  of  a  third,  that 
he  was  a  griping  landlord  and  a  tyrannical  master  to  his  servants. 
By  making  remarks  Uke  these  he  would  overstep  the  boundaries 
of  legitimate  criticism,  although  he  might  think  he  had  good 
reason  for  beUeving  that  what  he  was  saying  was  true.  But 
the  law  wiU  protect  any  man  in  making  comment,  however 
strongly  worded,  on  the  public  conduct  of  pubhc  bodies  and  public 
men,  if  those  comments  be  made  in  good  faith  and  in  honest 
spirit. 

Gentlemen,  I  have  made  those  observations  because  it  seems  to 
me  that  they  are  much  needed  at  the  present  juncture.  I  expected 
that  the  Attorney-General  would  have  filed  an  information  against 
the  defendant  for  a  scandalous  libel  reflecting  on  the  Legislative 
Council,  and,  as  I  have  already  intimated,  there  is  no  doubt  that 
the  publication  of  such  a  Ubel,  if  proved  to  the  satisfaction  of  a 
jury,  would  subject  the  offender  to  severe  penalties.  It  is  quite 
true  that  in  the  mother  country  prosecutions  of  this  kind  have 
fallen  into  disuse.  The  last  case  which  I  have  been  able  to  find  is 
in  R.  V.  Reeves  (Peake's  Addl.  Cases,  84,  Ed.,  1796),  about  65 
years  ago,  in  which  the  prosecution  was  instituted  by  the  Attorney- 
General,  in  consequence  of  a  resolution  of  the  House  of  Commons, 
declaring  a  pamphlet  published  by  the  defendant  to  be  a  libel. 
The  Imperial  Parhament  has  now  no  need  of  prosecution  for  libels 
to  support  its  character  and  dignity,  although  they  were  occa- 
sionally instituted  in  more  arbitrary  times.  Still,  the  right  of 
prosecution  exists,  and  if  the  Legislative  Council  of  this  colony 
deems  it  expedient  to  resort  to  such  proceedings,  it  will  be  the  duty 
of  this  Court  to  give  them  full  effect.  They  must,  however,  be 
commenced  in  some  other  way  than  by  an  information  ex  officio. 
The  usual  objects  of  an  information  ex  officio,  are  properly  such 
enormous  misdemeanours  as  peculiarly  tend  to  disturb  or  endanger 
the  Queen's  Government,  or  to  molest  or  affront  her  in  the  regular 
discharge  of  her  royal  functions,  such  as  a  seditious  or  blasphemous 
libel  or  words,  seditious  riots  not  amounting  to  high  treason,  libels 
upon  the  Queen's  ministers,  the  judges  or  other  high  officers, 
reflecting  upon  their  conduct  in  the  execution  of  their  official 
duties,  obstructing  such  officers  in  the  execution  of  their  official 


CRIMINAL  REPORTS,   1860-1907.  19 

duties,  and  the  like  (Arch.  PI.  and  Evid.  95,  Ed.  1856).  The  ^-  ''_Pcgh. 
Attorney-General  appears  to  have  been  alive  to  this  difficulty,  Lutwyche  J. 
and,  therefore,  while  complying  with  the  request  of  the  Legis- 
lative Council  to  prosecute  the  publisher  of  the  Courier  for  a 
libel,  he  has  filed  an  information,  not  for  the  publication  of  a 
scandalous  but  of  a  seditious  libel.  By  so  doing,  however,  he  has 
fallen  into  a  graver  error  than  he  would  have  committed  if  he 
had  filed  an  information  ex  officio  against  the  defendant  for  the 
publication  of  a  scandalous  libel  on  the  Legislative  Council. 
In  the  latter  case  I  should  have  been  prepared  to  reserve  (under 
the  Act  13  Vic,  No.  8,  s.  1)  the  point  about  the  form  of  the 
information,  and  the  case  could  then  have  gone  to  the  jury  on  its 
merits.  And,  gentlemen,  if  this  course  had  been  taken,  I  might 
very  fitly  have  adopted,  as  a  portion  of  my  charge  to  you,  a 
passage  from  the  speech  delivered  by  Mr.  Erskine  (afterwards 
Lord  Chancellor)  in  the  case  of  The  King  v.  Stockdale  (22  Howell's 
State  Trials,  238),  to  which  the  Attorney-General  has  to-day 
called  the  attention  of  the  Court.  The  defendant  in  that  case 
was  prosecuted  for  a  Ubel  upon  the  House  of  Commons  by  pub- 
lishing a  review  of  the  charges  made  by  the  House  of  Commons 
against  Warren  Hastings,  formerly  Governor  of  India,  and 
whereby  he  was  impeached  of  high  crimes  and  misdemeanours. 
The  review  was  in  fact  a  defence  of  the  conduct  of  Warren  Hastings, 
and,  in  answering  the  charge  of  Ubel  against  Stockdale,  his 
counsel,  Mr.  Erskine,  used  these  memorable  words  : — "  If,  after 
the  performance  of  this  duty  (i.e.  the  reading  of  the  review),  you 
can  return  here,  and  with  clear  consciences  pronounce  upon  your 
oaths  that  the  impression  made  upon  you  by  these  pages  is  that 
the  author  wrote  them  with  the  wicked,  seditious,  and  corrupt 
intentions  charged  by  the  information,  you  have  then  my  full 
permission  to  find  the  defendant  guilty.  But  if,  on  the  other 
hand,  the  general  tenor  of  the  composition  shall  impress  you 
with  respect  for  the  author,  and  point  him  out  to  you  as  a  man, 
mistaken,  perhaps,  himself,  but  not  seeking  to  deceive  others  ; 
if  every  line  of  the  work  shall  present  to  you  an  intelligent  mind 
glowing  with  a  Christian  compassion  towards  a  fellow  man  whom 
he  believed  to  be  innocent,  and  with  a  patriot's  zeal  for  the  liberty 
of  his  country,  which  he  considered  wounded  through  the  sides 
of  an  oppressed  fellow  citizen  ;  if  this  shall  be  the  impression 
on  your  consciences  and  understanding  when  you  are  called  upon 
to  deliver  your  verdict,  then  hear  from  me  that  you  not  only 
work  private  injustice,  but  break  up  the  press  of  England,  and 


20  QUEENSLAND   JUSTICE   OF  THE    PEACE. 

R.  V.  Pnoa.       surrender  her  rights  and  liberties  for  ever,  if  you  convict  the 

Lutwyohe  J.      defendant." 

These  words,  gentlemen,  with  a  few  verbal  alterations  which  will 
easily  suggest  themselves  to  your  mind,  would  have  appropriately 
formed  a  portion  of  my  charge  to  you  if  the  defendant  in  this 
case  had  been  indicted  for  the  publication  of  a  false,  scandalous, 
and  malicious  libel.  But  the  information  charges  the  pubHcation 
of  a  seditious  Ubel,  and  I  am  bound  to  tell  you  that,  in  point  of 
law,  no  seditious  Ubel  can  be  published  of  and  concerning  the 
Legislative  Council  of  this  colony.  What,  gentlemen,  is  sedition  ? 
It  is  defined  to  be  a  factious  commotion  of  the  people,  or  a. 
tumultuous  assembly  of  men  rising  in  opposition  to  law  or  the 
administration  of  justice,  and  in  disturbance  of  pubUc  peace 
(Webster's  Diet.).  The  precedents  for  seditious  libels  and  words 
always  charge  an  intent  to  stir  up  and  excite  discontents  and 
seditions  among  Her  Majesty's  subjects,  or  to  excite  them  to 
insurrections,  riots,  and  breaches  of  the  peace  ;  and  if  this  be  the 
language  of  the  precedents,  it  shows  what  the  law  is,  for  pleading  is 
the  language  of  the  law.  Such  an  intent  must  be  alleged  and 
proved  before  any  man  can  be  convicted  of  the  pubUcation  of  a 
seditious  libel.  Does  the  present  information  charge  any  such 
intent  ?  It  does  not.  It  charges,  indeed,  an  intent  to  bring 
the  Legislative  Council  into  hatred  and  contempt  with  "  the 
subjects  of  the  colony  " — a  clumsy  and  inaccurate  expression — 
but  such  an  intent,  even  if  carried  into  execution,  would  not 
amount  to  sedition  at  common  law.  It  is  said  by  a  learned 
writer  on  the  law  of  libel  (Starkey  on  Libel,  535),  that  the  same 
policy  which  prohibits  seditious  comments  on  the  King's  conduct 
and  government,  extends,  on  the  same  grounds,  to  similar  reflec- 
tions on  the  proceedings  of  the  two  Houses  of  ParUament.  With 
great  respect  for  the  authority  of  that  distinguished  lawyer, 
I  yet  entertain  strong  doubts  whether  even  the  two  Houses 
of  the  Imperial  ParUament  had  power,  at  common  law,  to  direct 
a  prosecution  for  a  seditious  Ubel  on  either  of  them.  The  only 
two  cases  cited  by  the  Attorney-General  to  show  that  the  House 
of  Commons  had  an  inherent  power  to  direct  a  prosecution 
for  seditious  libels  were  R.  v.  Almon  (20  Howell's  State  Trials, 
803),  and  R.  v.  Stockdale  already  referred  to.  In  the  former 
case  the  defendant's  offence  was  the  publication  of  "  Junius's 
Letter  to  the  King,"  tied  the  information  contained  two  counts, 
the  first  charging  a  seditious  pubUcation  against  the  King,  his 
ministers,  and  the  House  of  Commons,  and  the  second  charging 


CEIMINAL  REPORTS,   1860-1907.  21 

a   seditious   publication   against  the   House   of   Commons.     The       ^^  "•  ^^°^- 

defendant  was  convicted,  and,  as  it  was  at  that  time  considered      Lut^^e  J. 

by   all  lawyers  that   an  indictment  might  be  sustained  if   one 

offence  known  to  the  law  were  duly  set  forth  in  it,  I  can  easily 

understand   why   the   counsel   for   the   defendant   did   not   take 

any  steps  to  arrest  the  judgment  on  the  ground  that  the  second 

count  of  the  information  was  bad.     It  is  now  settled,  however, 

by   a   comparatively   recent    decision   of   the   House    of    Lords 

{O'Connell  v.  The  Queen,  11  CI.  &  F.,  155),  that  if  there  be  one  bad 

count  in  an  indictment,  and  a  general  verdict  of  guilty  be  taken 

on  all  the  counts,  the  judgment  must  be  arrested.     In  Stockdale's 

case  the  defendant  was  acquitted,  and  no  opportunity,  therefore, 

was  afforded  for  testing  the  validity  of  the  information. 

These  two  cases  are  the  only  precedents  to  show  what  the 
practice  of  the  House  of  Commons  has  been  ;  but,  as  Lord  Denman 
observes  in  Stockdale  v.   Hansard   (9  Ad.   and  E.    155)—"  The 
practice  of  a  ruling  power  in  the  state  is  but  a  feeble  proof  of  its 
legality."     And  the  doubts  which  I  have  expressed  are  greatly 
fortified  by  the  subsequent  passing  of  a  statute  (60  Geo.  III. 
and  1  Geo.  IV.,  c.  8)  containing  provisions  which  would  have  been 
unnecessary  if  the  House  of  Commons  had,  at  common  law,  the 
power  which  was  claimed  for  them.     That  Act,  which  was  passed 
in  times  of  great  political  commotion — about  the  period  of  what 
are  termed  the  Manchester  Massacres  and  the  Cato  Street  Con- 
spiracy— enacted  that  a  hbel  tending  to  bring  into  hatred  or 
contempt  either  House  of  Parliament  was  a  seditious  libel.     The 
enactment,  however,  has  remained  a  dead  letter  on  the  statute 
book  ;    but  it  is  quite  clear  that  its  operation  was  intended  to 
be  confined  to  the  two  Houses  of  the  Imperial  Parliament,  and 
iad   no   reference   to    any   existing   colonial   legislature,    to   say 
nothing  of  a  legislature  which  was  not  created  till  forty  years 
afterwards.     And,  whether  the  Imperial  Parliament  possessed  at 
common  law  the  power  of  prosecuting  for  a  seditious  libel  or  not, 
it  is  now  well  settled  that  the  law  and  custom  of  Parliament, 
under  which  such  a  power  might  have  been  claimed  and  exercised, 
applies  exclusively  to  the  House  of  Lords  and  House  of  Commons 
in  England.     (Fenton  v.  Hampton,  11  Moo.  P.C.  Cas.  347.)     The 
law   and  custom  of   Parliament  is  founded  on  precedents   and 
immemorial  usage,  under  cover  of  which  a  ruling  power  in  the 
state  "  has  committed  many  acts  which  posterity  has  unequivo- 
cally condemned."       By  the  creation  of  a  local  legislature,  such 
powers  only  are  conferred  upon  it  as  are  reaonably  necessary  for 


22  QUEENSLAND  JUSTICE   OF  THE    PEACE. 

B.  V.  PnoH.  the  proper  exercise  of  its  functions  and  duties  (Kielley  v.  Carson,  4 
Lutwyche  J.  Moo.  P.O.  Gas.  63).  We  owe  allegiance  to  the  Queen  and  obedi- 
ence to  the  lawful  commands  of  the  Queen's  Government ;  but 
the  Legislature  of  Queensland  forms  no  part  of  the  Government, 
Theoretically,  as  well  as  practically,  the  Legislature  and  the 
Executive  are  separate  bodies  with  distinct  functions,  and  any 
attempt  to  amalgamate  them  would  only  result  in  confusion  and 
disorder. 

The  objection  to  the  sufficiency  of  the  information  appears  on 
the  record,  and  the  defendant  may  take  advantage  of  it,  either 
by  a  motion  in  arrest  of  judgment,  or  by  a  special  case  under  the 
Act  13  Vic,  No.  8.  As  he  has  pleaded  to  the  information,  it  wifl 
now  be  for  you,  gentlemen,  to  say  whether  the  defendant  haa 
published  a  seditious  libel,  or  whether  you  think  that  the  article 
which  was  published  in  the  Courier  on  30th  of  July  was  justified  by 
the  occasion  of  its  pubHcation.  I  have  already  said  that  in  point 
of  law  a  seditious  libel  cannot  be  published  of  and  concerning  the 
Legislative  Council,  though  a  scandalous  libel  may  ;  and  you  are 
to  say  whether  you  will  adopt  my  opinion  of  a  seditious  libel  or 
not ;  and,  unless  you  are  satisfied  that  I  am  wrong,  you  will 
take  the  law  from  me.  In  giving  you,  gentlemen,  this  direction, 
I  follow  the  precise  terms  of  a  direction  given  by  a  very  learned 
judge  in  a  similar  case  (Rex  v.  Burdett,  4  B.  &  A.  95),  and  which 
direction  was  considered  by  the  Court  of  King's  Bench  to  be  a. 
correct  mode  of  leaving  the  question  to  the  jury  under  32  Geo.  III., 
c.  60  (Mr.  Fox's  Libel  Act).  You  will  now,  gentlemen,  be  pleased 
to  consider  your  verdict. 

Verdict  :— "  Not  guilty." 

Solicitors  for  defendant  :    Lilley  ds   Garrick. 


CRIMINAL  REPORTS,   1860-1907.  23 

[In  Banco.] 

R.  V.  BENNETT. 

[1  S.C.R.  109,— Kote.— See  now  s.  427  of  Criminal  Code.    29  Vic,  No.  6,  s.  94, 
mentioned  in  footnote,  is  repealed.] 

7  cfc  8  Geo.  IV.,  c.  29,  s.  5Z— False  pretences—''  Chattel  "—Credit.  1863. 

21st  August. 
Bread,  meat,  drink,  and  refreshments  are  "  chattels  "  within  the  meaning  of  

7  &  8  Geo.  IV.,  c.  29,  s.  53.*  C<'c'^'«  C?  ■'■ 


Ceown  Case  reserved  by  Lutwyche  J. 

Bennett  was  charged  at  the  Ipswich  Assizes  with  having 
obtained  "  bread,  meat,  drink,  and  refreshments "  from  one 
Jackson  Curry  by  a  false  pretence.  He  was  found  guilty  and 
sentenced,  but  Lutwyche  J.  reserved  for  the  opinion  of  the  Court 
in  Banco  the  question  whether  "  bread,  meat,  drink,  and  refresh- 
ments," as  charged  in  the  information,  were  chattels  within  the 
meaning  of  7  &  8  Geo.  IV.,  c.  29,  s.  53.* 

Blakeney,  for  the  prisoner,  cited  R.  v.  Gardner  (25  L.J.,  M.C., 
100)  ;  R.  V.  Kenrick  (5  Q.B.  49)  ;  R.  v.  Crossley  (2  Moo.  &  R.  17). 

The  Court  answered  the  question  in  the  af&rmative,  and  affirmed 
the  conviction. 

Pring  A.G.  begged  the  leave  of  the  Court  to  say  that  many 
cases  came  before  him,  as  grand  jury  of  the  colony,  similar  to 
this  ;  and  he  believed  in  this  the  real  question  was  that  credit 
had  been  obtained  from  Jackson  Curry. 

The  Court  stated  they  were  of  opinion  that,  from  the  case  as 
stated,  even  if  credit  had  been  obtained,  the  chattels  had  also 
been  obtained,  and  that  question  would  not  affect  the  present 
case. 

*  7  &  8  Geo.  IV.,  c.  29,  a.  53.  And  whereas  a  failure  of  justice  frequently 
arises  from  the  subtle  distinction  between  larceny  and  fraud  for  remedy  thereof 
be  it  enacted  that  if  any  person  shall  by  any  false  pretence  obtain  from  any 
other  person  any  chattel  money  or  valuable  security  with  intent  to  cheat  or 
defraud  any  person  of  the  same  every  such  offender  shall  be  guilty  of  a  misde- 
meanour and  being  convicted  thereof  shall  be  liable  at  the  discretion  of  the 
court  to  be  transported  beyond  the  seas  for  the  term  of  seven  years  or  to  suffer 
such  other  punishment  by  fine  or  imprisonment  or  by  both  as  the  Court  shall 
award.  Provided  always  that  if  upon  the  trial  of  any  person  indicted  for  such 
misdemeanour  it  shall  be  proved  that  he  obtained  the  property  in  question  in  any 
such  manner  as  to  amount  in  law  to  larceny  he  shall  not  by  reason  thereof  be 
entitled  to  be  acquitted  of  such  misdemeanour  and  no  such  indictment  shall  be 
removable  by  certiorari  and  no  person  tried  for  such  misdemeanour  shall  be 
liable  to  be  afterwards  prosecuted  for  larceny  upon  the  same  facts. — Pring's 
Stat.,  p.  344.     (But  see  now  29  Vic,  No.  6,  a.  94.) 


Lutu-yche  J. 


24 


QUEENSLAND  JUSTICE   OF  THE    PEACE. 


R.  V.  COLLINS. 
[1  S.C.R.  112.— Note.— See  ss.  571  and  596  ol  Criminal  Code.] 
1864.  Information — Objection    to — Time    for    objection — Commission    of 

SUtjuly.  Crown  Prosecutor. 

Lutwyche  J.  A  prisoner,  arrainged  on  a  charge  o£  murder,  pleaded  not  guilty      His  counsel 

then  took  objection  to  the  prisoner's  trial  on  the  information  filed  against  him, 
on  the  ground  that  it  was  signed  by  a  Crown  Prosecutor  who  was  not  acting  under 
a  valid  commission. 

Held,  that  the  objection  was  taken  too  late,  as  the  prisoner  had  already  pleaded 
over. 

Tbial  of  Michael  Collins  at  the  Toowoomba  Assizes  on  a  charge 
of  murder. 

Blakeney,  for  the  prisoner. 

Prisoner,  who  was  indicted  for  murder,  on  his  arraignment, 
pleaded  not  guilty. 

Blakeney  took  a  preliminary  objection  to  the  prisoner's  being 
tried  on  the  information  to  which  he  had  pleaded,  as  it  had 
been  filed  by  the  Crown  Prosecutor,  Mr.  Gore-Jones,  claiming 
to  act  under  a  valid  commission  from  the  Governor,  whereas  the 
commission  was  not  dated  when  issued,  and  the  date  was  only 
put  in  by  the  Attorney-General  during  the  assizes. 

Lutwyche  J.  was  of  opinion  that  the  objection  had  been  taken 
too  late,  as  the  prisoner  had  already  pleaded  over. 


1865. 
19th  April. 

Cockle  C.J. 
Lutwyche  J. 


[In  Banco.] 

R.  r.  NUGENT. 

[1  S.C.R.  135 ;  7  Q.L.J.  N.C.  102.— Note.— See  now  s.  391  of  Criminal  Code.] 

Larceny — Absolute  and  special  property — Felonious  intent. 

N.  was  charged  with  stealing  and  receiving  two  kegs  of  brandy,  seized  by 
K.,  a  sergeant  of  the  poUce,  in  the  execution  of  his  duty.  The  jury  found  as  a 
fact  that  N.  intended  to  deprive  K.  of  his  whole  property  in  the  goods,  but  had 
taken  them  for  the  benefit  of  the  former  owner. 

Hdd,  that  on  those  facts  a  conviction  of  larceny  could  not  be  sustained. 

R.  V.  Knight  (2  East  P.  C.  510),  foUowed. 

Crown  Case  reserved  by  Cockle  C.J.  on  the  trial  of  Nugent 
at  Rockhampton,  on  an  information  containing  two  counts, 
charging  him  with  steaUng  and  receiving  two  kegs  of  brandy 


CRIMINAL  REPOETS,   1860-1907. 


25 


which  a  sergeant  in  the  gold  escort  of  poUce  had  seized  in  the      B"  "•  Wugent. 
execution  of  his  duty,  and  which,  subject  to  such  seizure  and  its 
results,  were  the  property  of  Smith. 

In  answer  to  questions  put  by  the  learned  Judge,  the  jury  found 
the  prisoner  intended  to  deprive  Kelly  of  his  whole  property  in 
the  goods,  and  that  he  took  them  for  the  benefit  of  Smith,  being 
aware  of  a  lawful  seizure  by  Kelly,  and  that  the  latter  had  a 
right  to  the  goods  as  against  Smith. 

The  prisoner  was  convicted  on  both  counts  and  sentenced. 

The  question  reserved  for  the  Court  was  whether,  on  the  facts 
so  found,  a  larceny  had  been  committed. 

PrifUj  A.G.,  for  the  Crown,  cited  R.  v.  Privett  (1  Den.  193), 
B.  V.  Jones  (lb.  188). 

Cockle  C.J.  :  In  E.  v.  Knight  (2  East.  P.C.  510),  where  un-  Cockle  C  J. 
customed  goods  were  seized  by  the  prisoners  with  intent  to  re- 
take them  on  behalf  of  their  former  owner,  the  presumption  of 
the  felonious  intention  was  rebutted  on  the  finding  of  the  jury. 
In  R.  V.  Privett  there  was  an  absolute  ownership.  In  R.  v. 
Knight  the  property  was  special.  The  two  cases  are  distinguish- 
able from  the  one  now  before  the  Court,  in  which  there  was  no 
absolute  property.  We  follow  R.  v.  Knight,  and  avoid  the 
judgment. 

Conviction  quashed. 


[In   Banco.] 

R.  V.  LEWIS. 

[1  S.C.R.  138. — Note. — See  now  s.  619  ol  Criminal  Code.] 

Crown  case  reserved — Crown  prosecutor — Right  of  reply — District 
Court. 

The  Crown  Prosecutor  in  the  Supreme  Court  has  a  right  to  reply,  even  though 
the  prisoner  caE  no  evidence. 

Qucere  whether  the  same  rights  exist  under  The  District  Courts  Act. 

Cbown  Case  reserved  by  Ltjtwyche  J. 

The  prisoner  was  tried  at  the  Criminal  Sittings  of  the  Supreme 
Court  at  Rockhampton,  on  the  30th  September,  1865,  before  his 
Honor  Mr.  Justice  Lutwyche,  on  a  charge  of  horse  steahng.  No 
evidence  was  called  for  the  defence.  Bramston,  Crown  Prosecutor, 
claimed  a  right  to  reply  on  the  part  of  the  Crown.     The  learned 


1865. 
7th  December. 

Cockle  G.J. 
Lutwyche  J. 


26  QUEENSLAND   JUSTICE   OP  THE    PEACE. 

R.  .;^Lewis.  Judge  allowed  the  reply,  but  reserved,  for  the  consideration  of  the 
Full  Court,  the  point  whether  he  was  right  in  allowing  such 
reply.  The  prisoner  was  convicted,  and  sentenced  to  one  year's 
imprisonment  with  hard  labour. 

Lilley  A.G.,  in  support  of  the  right,  referred  to  7  C.  &  P.,  676, 
where  it  was  stated  that,  at  a  meeting  of  the  Judges,  a  discussion 
took  place  as  to  certain  points  likely  to  occur  at  the  assizes,  in 
consequence  of  the  recent  Act  allowing  prisoners  indicted  for 
felony  to  make  full  defence  by  counsel.  The  course  of  practice 
as  to  the  right  of  reply  by  the  Crown  which  it  was  thought  most 
advisable  to  adopt,  was  as  follows  : — In  cases  of  pubUc  prosecu- 
tion for  felony,  instituted  by  the  Crown,  the  law  officers  of  the 
Crown,  and  those  who  represent  them,  are,  in  strictness,  entitled 
to  the  reply,  although  no  evidence  is  produced  on  the  part  of 
the  prisoner. 

The  Court  were  of  opinion  that  Mr.  Bramston,  being  duly 
authorised  to  represent  the  Attorney-General,  had  the  same 
right  as  the  Attorney-General ;  but  that  it  must  be  understood 
that  they  gave  no  opinion  as  to  whether  the  same  rights  extended 
to  Crown  Prosecutors  under  The  District  Courts  Act. 


1866. 
5th  Septeviber. 

Cockle  G.J. 
Lutwyche  J. 


[In  Banco.] 

REGINA  V.  ATTWOOD. 

[1  S.C.R.  146.— Note See  ss.  567  and  568  ol  Criminal  Code.] 

Information — Counts  for   felony  and  misdemeanour — Amendment 
refused — Plea. 

An  information  contained  a  count  for  felony,  with  a  count  for  a  misdemeanour. 
Leave  to  amend  was  refused.  The  accused  pleaded,  and  no  evidence  was  offered 
on  the  felony,  and  the  prisoner  was  convicted  of  the  misdemeanour. 

Held,  that  the  conviction  as  to  the  misdemeanour  must  be  sustained. 

B.  V.  Ferguson  (27  L.J.  M.C.  61)  followed. 

Cbown  Case  reserved  by  the  Judge  of  the  MetropoHtan  District 
Court,  at  Brisbane. 

The  prisoner  was  tried,  on  the  14th  August,  on  an  information 
charging  him  with  obtaining  goods  under  false  pretences,  by  utter- 
ing a  forged  cheque  ;  and  also  with  feloniously  stealing  the  said 
goods.  At  the  trial,  objection  was  taken  to  the  indictment,  and 
leave  to  amend,  by  striking  out  the  count  for  the  felony,  was 


CRIMINAL  REPORTS,   1860-1907. 


27 


refused.  The  prisoner  pleaded,  and  a  verdict  of  guilty  was  found 
on  the  first  count,  and  sentence  passed,  the  learned  Judge  reserv- 
ing, however,  the  question  whether  the  conviction  could,  under 
the  circumstances,  be  sustained. 

The  prisoner  in  person. 

Cockle  C.J.  delivered  the  judgment  of  the  Court  as  follows  : — 
The  occasions  for  amendments  should  be  few,  and  should  only 
arise  under  circumstances  which  could  not  have  been  f-oreseen 
by  the  draftsman  if  he  had  used  reasonable  foresight.  It  seems 
that  the  learned  Judge  refused  to  exercise  those  powers  of  amend- 
ment which,  if  they  have  the  effect  of  leading  to  looseness  of 
criminal  pleadings,  and  are  made  the  means  of  casting  on  the 
Judge  the  duty  of  the  clerk  of  indictments,  will  prove  of  question- 
able pubhc  utility,  and  will  probably  lead  to  evils  as  great,  at 
least,  as  those  they  were  intended  to  obviate.  The  information, 
combining  as  it  did,  a  count  for  felony  with  a  count  for  mis- 
demeanour, was  improperly  framed  ;  but  we  are  not  called  upon 
to  discuss  the  mode  of  rectifying  the  irregularity  :  we  have  only 
to  consider  the  information  as  tried,  and,  in  so  doing,  we  presume 
that  the  prosecutor  elected,  or  was  put  to  his  election,  and  that 
the  prisoner  was  not  embarassed  in  his  defence.  He  made,  as 
it  seems,  no  application  to  quash  the  information,  but  pleaded 
to  it ;  and  no  evidence  was  offered  on  the  count  of  felony.  Under 
these  circumstances  we  think  the  conviction  must  be  sustained, 
and  we  are  supported  in  this  view  by  the  analogous  case  (the 
converse  of  the  present)  of  E.  v.  Ferguson  (24  L.J.M.C.  61,  Dears 
C.C.  427),  and  we  affirm  the  conviction  accordingly. 


BEaiNA  V. 

AiTwooi). 


[In  Banco.] 

REGINA  V.  HENNESSY. 

[1  S.C.R.  147 Note. — See  s.  619  of  Criminal  Code.      Case  referred  to  in  R.  v. 

Walsh  and  Bunting  (1902,  S.R.Q.  6,  at  8.] 

Crown  Prosecutor — District  Court — Right  of  reply  where  prisoner 
calls  no  evidence. 

No  counsel,  excepting  the  Attorney-General,  on  behalf  of  the  Crown,  or  a 
counsel  representing  the  Attorney-General  and  so  acting,  can  reply,  as  of  right, 
on  the  defence  of  a  prisoner  who  adduces  no  evidence. 

Crown  Case  reserved  by  Sheppard  D.C.J. 


1866. 
5th  September. 

Cockle  C.J. 
Lutwyche  J. 


28 


QUEENSLAND  JUSTICE   OF  THE    PEACE. 


Begina  cj. 
Heknesst. 


Cockle  C.J. 


The  prisoners  were  tried  in  the  District  Court  at  Brisbane,  on 
13th  June,  1866,  on  an  information  preferred  by  the  Crown 
Prosecutor  for  the  Metropolitan  District,  on  a  charge  of  horse 
stealing.  No  witnesses  were  called  or  examined  for  the  prisoners, 
but  on  the  conclusion  of  the  case  for  the  Crown,  their  advocate 
addressed  the  jury.  At  the  close  of  his  address,  the  Crown 
Prosecutor  claimed  a  reply,  which  was  objected  to  by  the  prisoners' 
advocate,  no  witnesses  having  been  examined  for  the  defence. 
The  right  having  been  insisted  upon,  the  learned  Judge  allowed 
it ;  but,  on  the  appHcation  of  the  prisoners'  advocate,  reserved 
the  question  for  the  consideration  of  the  Supreme  Court.  The 
prisoners  were  convicted,  and  each  sentenced  to  two  years' 
imprisonment  with  hard  labour. 

Qore  Jones,  for  the  Crown. 

Murphy,  for  the  prisoners. 

Cockle  C.J.  :  No  counsel,  excepting  the  Attorney-General,  on 
behalf  of  the  Crown,  or  a  counsel  representing  the  Attorney- 
General  and  so  acting,  can  reply  as  of  right,  on  the  defence  of  a 
prisoner  who  adduces  no  evidence.  This  is  a  rule  of  law  regulating 
practice,  and  not  a  mere  matter  of  practice  depending  on  the 
arbitrary  discretion  of  judges.  Whether  the  rule  be  inflexible  is  a 
point  we  need  not  enter  upon,  for  the  case  suggests  no  special 
circumstance  occasioning  a  departure  from  the  general  rule. 
The  case  does  not  state,  and  we  cannot  presume  that  the  District 
Court  Crown  Prosecutor  represented  or  ever  assumed  to  represent, 
the  Attorney-General.  It  would,  perhaps,  have  been  better  if  the 
commission  under  which  the  Crown  Prosecutor  had  acted  had 
been  set  out,  but  we  do  not  think  it  necessary  to  send  the  case 
back  to  be  re-stated  ;  for  having  been  furnished  by  direction 
of  the  Attorney-General  with  copies  of  the  commission,  certified 
by  our  Registrar's  clerk,  we  cannot  see  that  its  contents  would 
lead  to  any  substantial  modification  of  the  case.  It  may  he 
presumed,  then,  upon  the  case  as  stated,  that  the  right  of  the 
District  Prosecutor  to  reply  on  the  defence  of  prisoners  on  whose 
behalf  no  witnesses  were  examined,  arose  as  a  question  of  law  on 
their  trial.  It  may  be  further  presumed  that  this  right,  which 
was  insisted  upon,  was  held  to  inhere  in  him  simply  as  Crown 
Prosecutor,  and  in  virtue  of  his  office  only.  On  these  presumptions, 
which  arise  upon  the  case  as  stated,  we  think  that  the  decision 
was  wrong  ;  and,  being  of  opinion,  that  a  question  of  law  which 
arose  on  the  trial  was  wrongly  decided,  we  avoid  the  conviction, 
and  order  all  necessary  and  proper  entries  to  be  made  accordingly. 


CRIMINAL   REPOETS,   1860-1907. 


29 


LuTWYCHE  J.  :  The  practice  of  the  Court  is  the  law  of  the 
Court,  and  very  great  injustice  might  be  occasioned  by  a  departure 
on  the  part  of  the  judge  from  long  established  usage.  For 
instance,  he  might  refuse  the  prisoner  permission  to  cross-examine 
the  witnesses  for  the  Crown,  or  deny  him  the  privilege  conferred 
upon  him  by  statute  of  being  heard  in  his  defence  by  counsel. 
These  weU-known  legal  rights  would  be  taken  away  from  him, 
yet  no  record  of  it  could  be  preserved,  and  unless  we  had  the 
power  of  determining  such  questions  of  law,  the  prisoner  could 
have  no  remedy. 


Regina  v. 
Hennesst. 

Lutwyohe  J. 


R.  V.  GRIFFIN  (No.  1). 
[1  S.C.R.  176.] 

Criminal    law — Murder — Evidence — Other    felonies — A  dmissihility 
of  motive — Res  gestae. 

On  the  trial  of  a  prisoner  for  murder,  evidence  is  admissible  of  other  felonies 
committed  by  him  where  they  prove  a  motive  for  the  commission  of  the  crime 
or  form  part  of  the  res  gestae. 

Ceowk  case  reserved  by  Lutwyche  J.,  at  the  Rockhampton 
Assizes,  held  on  March  16th,  1868. 

The  prisoner,  Thomas  John  Griffin,  was  indicted  for  the  wilful 
murder  of  John  Power  and  Patrick  Cahill,  at  the  Mackenzie 
River,  on  the  6th  November,  1867.  At  the  trial,  the  Attorney- 
General,  who  prosecuted  on  behalf  of  the  Crown,  in  opening  the 
case,  stated  that  the  prisoner,  who  had  been  Police  Magistrate 
and  Gold  Commissioner  at  Clermont,  had  received  in  that  capacity 
from  certain  Chinamen  various  sums  of  money,  amounting  to 
£252,  to  be  forwarded  to  Rockhampton  ;  that  he  arrived  in 
Rockhampton  on  the  19th  of  October,  1867,  and  was  immediately 
applied  to  by  the  Chinamen,  and  by  others  on  their  behalf,  for 
the  money,  but  did  not  pay  them  then  ;  that  the  deceased  troopers 
were,  on  the  29th  October,  members  of  the  Clermont  gold  escort ; 
that  on  Tuesday,  29th  October,  the  prisoner  sent  Power,  one  of 
the  deceased,  from  the  camp,  about  four  miles  from  Rockhampton, 
to  the  bank  for  certain  money  to  be  conveyed  to  Clermont,  and 
that  Power  received  from  the  bank  four  parcels,  each  containing 
1,000  £1  notes  ;  that  Power  returned  to  the  camp  the  same 
evening  without  any  money  or  parcels  ;  that  prisoner  obtained 
the  money  from  Power  when  he  got  out  of  town,  and  that  the 


1868. 

12th  May. 

Cockle  C.J. 
Lutwyche  J. 


80  QUEENSLAND   JUSTICE    OF   THE    PEACE. 

B.  V.  GKirFiN      money  remained  in  his  possession  till  Friday,  the  1st  of  November  ; 
*^!li''  that  on  Wednesday,  the  30th  October,  he  met  the  Chinamen 

before  referred  to  at  the  Club  in  Rookhampton,  and  repaid  them 
the  money  he  had  received  from  them  at  Clermont  in  £1  notes 
which  had  been  among  those  delivered  to  Power  on  the  previous 
day  by  the  bank  ;  that,  on  the  1st  of  November,  the  prisoner,  at 
the  request  of  Power  and  Cahill,  with  whom  he  was  about  to 
start  on  the  road  to  Clermont,  sealed  up  with  his  own  seal  in 
a  canvas  bag  the  parcels  of  notes  then  in  charge  of  the  deceased  ; 
that  the  prisoner,  having  robbed  the  parcels,  and  having  sealed 
the  bag,  was  apprehensive  that  on  the  arrival  of  the  escort  at 
Clermont  the  robbery  would  be  discovered  and  that  he  would  be 
accused  ;  and  that  to  save  himself  he  accompanied  Power  and 
Cahill  on  the  road  as  far  as  the  Mackenzie  River,  and  there 
murdered  them.  Evidence  was  given  at  great  length,  tending 
to  prove  that  the  prisoner,  before  leaving  Rookhampton,  had  taken 
some  of  the  notes  from  the  parcels.  The  whole  of  that  evidence 
was  objected  to  by  the  prisoner's  counsel,  on  the  ground,  among 
others,  that  evidence  of  one  felony  was  not  admissible  against  a 
prisoner  charged  with  another  distinct  felony.  The  evidence  was, 
however,  admitted  ;  but  Lutwyche  J.,  before  whom  the  a,ction 
was  tried,  reserved  the  point  of  the  admissibility  of  such  evidence 
for  the  opinion  of  the  Full  Court. 

The  prisoner  was  convicted  and  sentenced  to  death. 

McDevitt,  Hely,  and  Grifjfith,  for  the  prisoner.  With  regard  to 
the  objections  raised  against  the  admissibility  of  the  evidence,  the 
Court  has  to  decide  whether  the  evidence  tending  to  prove  the 
abstraction  of  the  notes  was  admissible,  inasmuch  as  it  was  evi- 
dence of  a  distinct  felony  from  that  with  which  the  prisoner  was 
charged  in  the  indictment  on  which  he  was  tried.  In  considering 
whether  that  evidence  was  properly  received  or  not,  it  is  neces- 
sary to  refer  to  the  general  rules  of  law  as  to  the  admission  of 
testimony  to  understand  how  far  evidence  can  be  received  of 
points  not  in  issue  before  the  Court.  It  has  been  laid  down 
that  the  general  rule  upon  the  subject,  in  criminal  as  well  as 
civil  cases,  is,  that  nothing  should  be  given  in  evidence  which 
does  not  directly  tend  to  prove  or  disprove  the  matter  at  issue 
(Archbold's  Criminal  Practice,  page  200).  In  criminal  pro- 
ceedings evidence  must  be  confined  to  the  point  in  issue.  Where  a 
prisoner  is  charged  with  an  offence,  it  is  of  the  utmost  importance 
that  the  facts  laid  before  the  jury  should  consist  exclusively  of  the 
facts  charged  in  the  indictment.     It  is  a  general  rule  that  the  facts 


CRIMINAL  REPORTS,   1860-1907.  81 


proved  must  be  strictly  relevant  to  the  particular  charge.     It  is 
not  allowable  to  show  upon  the  trial  on  a  particular  indictment 
that  the  prisoner  has  a  disposition  to  commit  the  same  kind  of 
offence  as  that  for  which  he  stands  indicted  (3  Russell  on  Crimes, 
Book  v.,  Cap.  II.,  p.  279,  s.  2).     One  of  the  chief  objects  of  an 
indictment  being  to  afford  distinct  information  to  the  prisoner 
of  the  specific  charge  about  to  be  brought  against  him,  the  ad- 
mission  of   any   evidence   unconnected   with   that   charge   must 
clearly  be  open  to  the  serious  objection  of  taking  the  prisoner 
by  surprise.     No  man  can  be  called  upon,  or  be  bound  at  the 
peril  of  life,  liberty,  fortune,  or  reputation,  to  answer  at  once,  when 
unprepared,   for  every   action  of  his  Ufe   (Taylor  on  Evidence, 
Vol.  I.,  p.  303).     The  rule  to  which  allusion  has  been  made  is 
qualified  by  numerous  exceptions  (to  which  reference  will  briefly 
be  made)  which  the  proper  dispensation  of  justice  requires  ;  but 
the  evidence  which  has  been  admitted  does  not  come  within  any 
of  the  exceptions.     1.  The  first  exception  is  the  inseparability 
of  the  transaction.     When  the  several  felonies  are  so  mixed  up 
as  not  to  be  separated  without  great  inconvenience  to  the  prosecu- 
tor, evidence  of  aU  will  be  admitted  (3  Russell  on  Crimes,  285  ; 
Rex  V.  Hinley,  2  M.  &  R.  524).     Upon  that  first  exception  evidence 
of  the  nature  of  that  which  has  been  allowed  at  this  trial  cannot 
be  admitted,  unless  the  grounds  for  its  admission  are  so  strong, 
so  patent,  and  so  urgent,  as  to  override  the  proposition  so  clearly 
laid  down  by  the  authorities  quoted.     2.  The  next  exception  is 
when  the  felonies  are  so  connected  as  to  form  one  entire  trans- 
action.    Where  several  felonies  are  connected  together  and  form 
part  of  one  entire  transaction,  evidence  may  be  given  on  the 
hearing  of  a  charge  of  one  of  them  to  show  the  character  of  the 
others  (3  Russell,  281  ;  Bex  v.  Ellis,  6  B.  &  C,  145  ;  R.  v.  Birdseye, 
4  C.  &  P.  386  ;    Rex  v.  Wylie,  1  New  Rep.  S.C.  94  ;    Taylor  on 
Evidence,  p.  334).     Evidence  of  the  robbery  which  took  place 
several  days,  if  not  a  week,   before  the  crime  with  which  the 
prisoner  was  charged,  if  admitted,  at  all,  should  have  been  ad- 
mitted on  the  ground  that  it  formed  part  of  one  entire  transaction. 
In  most  cases  in  which  such  evidence  has  been  admitted  there 
were  felonies  of  the  same  character.     3.  The  third  exception,  to 
ascertain  the  identity  of  the  article  stolen,  does  not  bear  much 
upon  the  case.     In  cases  in    which   it   is   necessary   to  identify 
the  articles  stolen,  evidence  of  felonies  other  than  the  one  charged 
in   the   indictment   is    admissible    (3    Russell,    p.    280).     4.  The 
fourth  exception  is  to  prove  guilty  knowledge.     When  it  becomes 


E.  V.  Gkiffin 
(No.  1). 


82  QUEENSLAND  JUSTICE   OF   THE    PEACE. 

^  (No^Tr"'      "lecessary  to  prove  guilty  knowledge  on  the  part  of  the  prisoner, 

evidence  of  other  felonies  committed  by  him,  though  not  charged 

in  the  indictment,  are  admissible  for  that  purpose  (3  Russell,  p. 
287  ;  Archbold,  p.  201  ;  Taylor,  p.  341  ;  Eex  v.  Oddy,  2  Den. 
C.C.  264) .  Before  the  Court  can  allow  the  evidence  of  the  robbery, 
they  must  decide  whether  evidence  of  the  possession  of  the 
stolen  property  by  the  prisoner  in  Rockhampton  was  evidence 
of  his  murder  of  the  troopers  some  days  after.  5.  Evidence 
of  other  felonies  than  that  charged  in  the  indictment  may  some- 
times be  admitted  to  prove  guilty  intent,  but  the  possession 
of  the  stolen  notes  does  not  tend  to  prove  that  the  prisoner 
intended  to  murder  the  troopers,  and  therefore  the  evidence  is 
inadmissible.  (3  Russell,  page  288.  Taylor,  page  341).  Such 
evidence  is  usually  admitted  when  there  is  a  question  of  malice, 
but  the  evidence  was  not  offered  upon  that  ground  in  the  present 
case,  and  there  was  no  direct  evidence  to  support  such  an  assertion. 

LuTWYCHE  J.  :  Does  not  the  evidence  tend  to  show  pre- 
meditation or  deUberation  on  the  part  of  the  prisoner  ? 

MacDevitt :  Still  evidence  of  premeditation  is  not  admissible 
unless  it  comes  within  some  recognised  exception  to  the  rule,  which 
says  that  no  evidence  shall  be  given  except  that  which  goes  directly 
or  indirectly  to  prove  the  guilt  or  innocence  of  the  prisoner,  and 
evidence  of  malice  prepense  must  have  reference  directly  to  the 
act  of  murder.  Even  if  the  prisoner  admitted  that  he  had  com- 
mitted another  felony,  it  could  not  be  used  as  evidence  against 
him  in  the  case  he  was  being  tried  for.  On  the  grounds  men- 
tioned the  conviction  cannot  stand.  He  cited  also  R.  v.  Clewes 
(4  C.  &  P.  221)  ;  R.  v.  Ellis  (6  B.  &  C.  147)  ;  B.  v.  Oddy  (2  Den. 
C.C.  264)  ;  R.  v.  Butler  (2  C.  &  K.  221)  ;  R.  v.  Geering  (18  L.J., 
N.S.,  M.C.  215)  ;    R.  v.  Toke  (Roscoe's  Nisi  Prius,  288). 

Pring  A.G.  and  Lilley  Q.C.,  for  the  Crown. 

Cockle  C.J.  :  We  will  not  trouble  the  learned  counsel  for  the 
Crown. 

Pring  A.G.  :  It  might  assist  the  Court  if  I  refer  to  the  cases  of 
R.  V.  Palmer  (see  Report  in  Wills  on  Circumstantial  Evidence)  in 
which  evidence  of  a  forgery  committed  by  the  prisoner  was  given 
in  support  of  the  charge  of  murder  ;  R.  v.  Courvoisier  (9  C.  &  P- 
362)  ;  R.  V.  Garner  (3  F.  &  F.  681)  ;  and  R.  v.  Dossett  (2  C.  &  K. 
306). 


CRIMINAL  REPORTS,   1860-1907. 


33 


Cockle  C.J.  :  It  is  due  to  Mr.  MacDevitt,  who  has  zealously 
and  learnedly  argued  the  case  on  behalf  of  the  convicted  prisoner, 
that  the  Court  should  give  reasons  for  the  decision  to  which  we 
have  now  come.  We  fully  assent  to  much,  or  the  greater  part, 
of  what  has  been  energetically  urged  upon  us  by  Mr.  MacDevitt. 
If  evidence  were  tendered  when  a  man  is  on  his  trial  for  one  offence, 
of  his  having  been  guilty  of  another  offence,  and  if  such  evidence 
were  tendered  for  the  purpose  of  showing  that  he  was  a  man  of 
vicious  disposition,  and  therefore  Ukely  to  have  committed  the 
offence  for  which  he  was  tried,  such  evidence  would  be  not  merely 
irrelevant,  but  inadmissible,  and  its  admission  would  vitiate  the 
verdict.  Supposing  that,  in  the  case  of  a  man  on  his  trial  for  one 
offence,  evidence  is  tendered  to  show  that  he  had  been  reasonably 
suspected  of  having  committed  another  offence,  and  that  he  was 
a  man  of  bad  reputation  and  character,  and  so  the  more  Hkely  to 
have  committed  the  first  offence,  such  evidence  would  be  clearly 
inadmissible,  and  would  also  vitiate  the  verdict.  The  Court 
will  even  go  the  length  Mr.  MacDevitt  has  gone,  and  say  that  if  a 
man  were  on  his  trial  for  one  offence,  and  evidence  were  tendered  to 
show  that  he  had  admitted  that  he  had  perpetrated  and  committed 
an  offence  Uke  that  for  which  he  was  being  tried,  and  that  he 
had  been  tried,  and  that  he  had  a  strong  predisposition  to  commit 
the  offence,  then  such  evidence  ought  to  be  excluded,  and  if 
admitted  the  verdict  would  be  vitiated.  But,  supposing  evidence 
were  tendered  which,  while  inadmissible  on  account  of  some  of 
the  reasons  I  have  stated,  was  admissible  on  some  other  ground, 
why  then  the  single  ground  for  admission  would  override  aU  the 
grounds  for  exclusion,  and  the  evidence  must  be  admitted  in  the 
case  to  be  dealt  with,  according  to  the  rules  of  law  and  evidence, 
by  the  tribunal  before  which  the  man  was  being  tried. 

Now,  is  there  any  reason  in  the  present  case  which  will  justify 
the  admission  of  evidence  apparently  so  open  to  objection  ?  What 
was  the  first  enquiry  made  when  the  news  of  the  crime  was 
published  ?  Why,  what  could  have  been  the  motive  of  the  per- 
petrator ?  Surely  no  ordinary  reasoning  man  would  see  in  that 
anything  objectionable  ;  it  is  a  question  not  only  most  natural, 
but  one  the  solution  of  which  is  most  important  for  the  purposes 
of  justice.  Now,  Mr.  MacDevitt  appeared  to  say  that  a  motive 
was  not  by  that  name  included  amongst  the  cases  for  exception 
to  the  usual  rule  of  exclusion,  although  he  mentioned  "  intent  " 
as  one  of  the  exceptions.  It  is  not  necessary  for  the  Court  to 
say,  nor  perhaps  would  it  be  very  easy  to  point  out  the  precise 
c 


B.  V.  Gbiffin 
(No.  1). 

Cockle,  C.J. 


34 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


R.  I).  Griffin 
(No.  1). 

Cockle  C.J. 


distinction  between  motive  and  intent,  but  I  can  see  many  cases 
in  which  motive  and  intent  have  almost  the  same  meaning.  For 
instance,  a  man  is  charged  with  shooting  a  man  with  intent  to  kill 
him.  What  was  his  motive  ?  To  kill  this  person  ;  why  there  is 
his  intent  and  motive.  He  shot  at  the  man  with  intent  to  kill 
him,  and  his  motive  in  shooting  was  to  kiU  him.  So  that  is 
the  possible  distinction  between  the  words  motive  and  intent. 
In  the  present  case,  assuming  on  the  facts  as  stated,  that  there 
was  a  robbery  which  had  been  committed  prior  to  the  commission 
of  the  murder,  can  it  be  said  that  the  result  of  the  murder  would 
not  be  to  render  an  enquiry  into  the  circumstances  of  the  robbery 
more  difficult,  and  that  it  would  tend  to  baffle  the  researches  of 
justice  into  the  commission  of  the  robbery  ?  If  such  were  the 
result,  would  it,  in  the  mind  of  the  person  who  committed  the 
robbery,  be  an  expected  result  of  the  murder  ?  The  tribunal 
'before  whom  the  case  is  tried  must  say  whether  the  person  against 
whom  the  evidence  is  offered  would  have  sufficient  intelUgence  to 
see  that  that  might  be  the  result,  and,  if  they  aimed  at  that 
conclusion,  he  must  be  taken  to  have  expected  it.  Did  the 
prisoner  desire  such  a  result  ?  It  is  not  necessary  for  them  to 
say  that  he  either  expected  it  or  desired  it,  but,  if  he  expected  it, 
he  might  desire  it,  and  that  would  constitute  a  possible  motive, 
which  surely  ought  not  to  be  excluded  from  a  jury.  It  does  not 
foUow  that  the  jury  should  be  compelled  to  deem  that  motive 
a  sufficient  one  to  induce  them  to  act  upon  it  and  convict  the 
person  accused.  The  Court  has  only  to  determine  whether 
the  evidence  should  be  admitted,  and  we  think  that  aU  motives 
which  might  have  actuated  the  accused  person  are  fairly  matter 
to  be  laid  before  a  jury,  and  it  would  be  for  them,  in  their  own 
common  sense,  to  determine  what  weight  to  attach-  to  the  cir- 
cumstance. That,  I  think,  being  the  case,  the  appeal  must  he 
dismissed. 


LutwyeheJ.  LuTWYCHE  J.  :    I  agree  -with  the  Chief  Justice  that  the  con- 

viction must  be  affirmed.  It  appears  to  me  that  any  act  may  he 
given  in  evidence  which  would  or  might  operate  as  a  motive 
upon  the  mind  of  any  man.  If  it  did  so,  it  may  be  given  in 
evidence  against  the  prisoner.  The  whole  of  the  evidence  which 
was  objected  to  seems  to  me  to  form  part  of  the  res  gestae  of  the 
case,  and  to  be  indivisibly  connected  one  part  with  another,  from 
the  very  beginning,  when  the  prisoner  received  the  money  from 
the  Chinamen  at  Clermont  up  to  the  commission  of  the  robbery. 


CRIMINAL  REPORTS,  1860-1907. 


35 


Therefore  that  evidence  contained  facts  which  were  brought 
before  a  jury  to  show  the  motive  for  the  commission  of  the 
murder  ;  or,  at  any  rate,  facts  which  might  have  induced  any  other 
man  than  the  prisoner  to  commit  the  murder.  When  the  robbery 
was  once  committed  we  come  to  the  circumstances  attending 
the  murder,  and  we  find  that  the  bags  were  sealed  at  Power's 
request  by  the  prisoner.  If  another  man,  placed  in  the  same 
position  as  the  prisoner,  had  committed  the  robbery,  or  was,  or 
might  be,  in  fear  of  apprehension,  surely  then  evidence  of  the  same 
facts  might  be  given  against  the  prisoner,  not  as  furnishing  an 
adequate  motive,  but  as  furnishing  some  motive,  for  acting  as 
he  did.  The  conviction  must  be  affirmed. 
Solicitor  for  prisoner  :    Rees  Jones. 


R.  t).  Gbiffin 
(No.  1). 

Lutwyohe  J. 


[1  S.C.R.  182.— Note.- 


[In  Banco.] 
R.  V.  GRIFFIN  (No.  2). 

-29  Vic,  Ko.  13,  is  repealed,  see  now  s.  669  of  Criminal  Code, 
to  same  effect  as  s.  51  of  that  Act.] 


Mandamus — Circuit  Court — Judge  of  Assize — Crown  Case  Reserved 
— Amendment — Comment  on  Judge's  summing  up — Question 
of  fact — Criminal  Practice  Act  of  1865  (29  Vic,  No.  13), 
ss.  48,  51. 

Where  a  Judge  of  Assize  has  refused  to  state  a  point  raised  by  counsel  in  a 
Crown  Case  Reserved  by  him  on  other  points,  the  proper  time  to  bring  the  matter 
before  the  Full  Court  is  on  the  hearing  of  the  Crown  Case  Reserved. 

A  comment  made  by  the  Judge  in  the  course  of  summing  up  on  the  facts  of 
the  case  is  not  a  pomt  of  law  that  can  be  reserved. 

Qucere  whether  a  mandamus  will  lie  against  a  Jut^e  of  Assize. 

Motion  for  a  rule  nisi  for  a.  mandamus  addressed  to  the  Judge 
of  the  Circuit  Court,  at  Rockhampton,  commanding  him  to  state 
a  case  for  the  consideration  of  the  Full  Court. 

The  prisoner  Griffin  had  been  convicted  on  a  charge  of  murder, 
and  a  Crown  Case  had  been  reserved,  and  judgment  delivered 
thereon  as  above  (ante  p.  33^. 

All  the  other  necessary  facts  appear  in  the  argument  of  counsel 
and  the  judgments  of  the  learned  Judge's. 


1868. 
15th  May. 

Cockle  G.J. 
Lutuiyche  J. 


MacDevitt  and  Griffith  appeared  to  move  for  rule  nisi. 


36  QUEENSLAND  JUSTICE  OP  THE  PEACE. 

^'  (N^T™         Cockle  C.J. ":   The  Judge  of  the  last  Circuit  Court,  at  Rock- 
— —  hampton,  has  stated  a  case   for  the   Full   Court,  and  the  Court, 

after  hearing  it  argued,  has  dismissed  the  appeal. 

MacDevitt :  The  object  of  the  present  motion  is  to  get  the 
learned  Judge  to  state  a  case  containing  and  embodying  an 
objection  to  his  summing  up. 

Cockle  C.J.  :  The  Court  had  power  under  the  original  case,  if 
the  matter  had  been  suggested,  to  have  remitted  the  case  to  the 
learned  Judge.  That  was  the  proper  time  to  have  applied.  If 
there  was  anything  in  the  point  the  learned  Judge  would  have 
remembered  it. 

MacDevitt :  I  submit  the  learned  Judge  refused  to  embody  the 
objection  in  the  special  case  submitted  to  the  Full  Court. 

Cockle  C.J.  :  Look  at  s.  51  of  The  Criminal  Practice  Act, 
29  Vic,  No.  13. 

MacDevitt :  I  have  read  that  section  ;  it  says  "  The  Judges, 
when  a  case  has  been  reserved  for  their  opinion,  shaU  have  power, 
if  they  think  fit,  to  cause  the  case  or  certificate  to  be  sent  back 
for  amendment,  and  thereupon  the  same  shall  be  amended 
accordingly,  and  judgment  shall  be  delivered  after  it  shall  have 
been  amended."  There  could  be  no  object  in  applying  under  that 
section  for  an  amendment  of  the  special  case,  because  the  learned 
Judge  had  already  refused  to  embody  the  objection  in  it.  Section 
48  of  the  same  Act,  however,  lays  it  down  that  "  When  any  persoa 
shall  have  been  convicted  of  any  treason,  felony,  or  misdeamenour, 
before  any  Court  of  Criminal  Jurisdiction  within  the  colony,  the 
Judge,  or  Chairman,  or  Justices  of  the  Peace,  before  whom  the 
case  shall  have  been  tried,  shall,  on  the  application  of  counsel, 
made  during  the  trial,  or  without  such  application,  in  his  or  their 
own  discretion,  reserve  any  question  or  questions  of  law  which 
shall  have  arisen  on  the  trial  for  the  consideration  of  the  Judges  of 
the  Supreme  Court,  and  thereupon  shall  have  authority  to  respite 
execution  of  the  judgment  on  such  conviction,  or  postpone  the 
judgment  until  such  question  or  questions  shall  have  been  con- 
sidered and  decided."  The  learned  Judge,  at  the  trial,  refused  to 
state  a  special  case  to  the  Full  Court  embodying  the  objection 
taken  at  the  trial,  as  he  alleged  it  did  not  come  within  that  section, 
as  it  was  not  a  point  of  law  but  of  fact.  That  is  the  reason  why 
no  application  was  made  to  the  Court  to  send  back  the  special 


CEIMINAL  EEPOETS,  1860-1907.  37 

-case  to  the  learned  Judge  who  tried  it,  to  embody  that  objection      ^-  ^<^^^^^^^ 
in  it.     He  cited  Ex  parte  Inhabitants  of  Jarvin  (9  Dowl.  120)  ;  — !_ 

Tapping,  p.  235. 

LuTWYCHE  J.  :  If  the  apphcation  had  been  made  when  the 
special  case  was  being  argued,  and  the  Chief  Justice  had  thought 
it  was  a  point  which  ought  to  be  embodied  in  that  case,  I  would 
have  embodied  it,  whatever  my  own  opinion  might  be. 

MacDemtt :  I  regret  that  that  course  has  not  been  pursued. 
It  was  distinctly  understood  that  the  learned  Judge  who  tried  the 
«ase  had  consulted  with  the  Chief  Justice,  and  had  determined  that 
the  only  point  he  would  submit  to  the  Full  Court  was  the  one  which 
has  already  been  decided. 

LuTWYCHE  J.  :  I  spoke  to  the  Chief  Justice  about  it,  but  did 
not  consult  with  him.     I  acted  upon  my  own  responsibility. 

MacDevitt :  The  Circuit  Court  at  Rockhampton  is  an  inferior 
Court  to  the  Supreme  Court,  and  it  was  the  duty  of  the  Judge 
to  have  reserved  any  point  of  law  raised  in  the  course  of  the  trial 
for  the  consideration  of  the  Full  Court. 

LuTWYCHE  J.  :  The  Circuit  Court  at  Rockhampton  is  a  superior 
Court  of  Record.  The  presiding  Judge  at  the  trial  was  only  bound 
to  reserve  points  of  law,  and  not  matters  of  fact,  for  the  consider- 
ation of  the  Full  Court,  and  it  rested  with  him  to  determine  whether 
the  points  raised  were  matters  of  law  or  fact.  It  is  clear  no  action 
can  lie  against  the  Judge  of  a  Superior  Court,  except  for  refusing 
to  sign  a  bUl  of  exceptions.  I  would  like  to  be  shown  some 
authority  to  show  that  a  mandamus  can  lie  against  the  Judge  of 
a  Superior  Court. 

MacDevitt :  By  The  Criminal  Practice  Act  of  1865,  the  Judge 
who  tries  cases  in  this  colony  is  put  upon  the  same  footing  as 
Justices  of  Quarter  Sessions  in  England.  It  cannot  be  contended 
that  a  mandamus  will  not  he  to  a  Justice  of  Quarter  Sessions,  or 
other  judges  of  inferior  Courts  trying  criminal  cases,  and  why 
should  it  not  be  addressed  to  the  Judges  of  courts  of  oyer  and 
terminer. 

Cockle  C.J.  :   You  could  attach  the  Judge  if  that  were  so. 

MacDevitt :  I  rely  principally  on  the  fact  that  His  Honour, 
Mr.  Justice  Lutwyche,  in  summing  up,  told  the  jury  "  If  the 
prisoner  did  not  commit  the  murder,  who  did  ?  This  is  a  question 


88 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


B  V.  Griffin 
(No.  2). 


Cockle  C.J. 


which  you  must  answer  for  yourselves  before  you  can  give  a, 
verdict  upon  your  consciences  in  this  case."  When  the  jury  had 
retired  I  objected  to  that  ruling,  and  asked  the  learned  Judge  to 
reserve  it. 

LuTWYCHE  J.  :  That  is  quite  correct,  and  I  told  you  to  sit  down  ; 
that  you  were  making  comments  upon  my  observations  to  the  jury 
upon  a  question  of  fact.  It  was  not  the  thing  upon  such  a  sad  and 
solemn  occasion  to  have  an  altercation  with  counsel ;  and  having 
some  tenderness,  perhaps,  for  the  inexperience  of  the  three  gentle- 
men who  were  engaged  in  defending  the  prisoner,  I  said  I  would 
take  a  note  of  the  objection  and  speak  to  the  Chief  Justice  about 
it.     I  did  both. 

MacDevitt :  I  submit  that  in  cases  in  which  a  cUent's  life  and 
liberty  are  at  stake,  his  counsel  are  justified  in  taking  advantage 
of  every  chance  which  the  facts  of  the  case  and  the  law  permit. 

Cockle  C.J.  :  In  the  first  place  the  Court  is  not  satisfied  that 
a  mandamus  wiU  lie  to  a  Judge  of  Assize,  and  therefore  we  will  be 
spared  the  painful  notoriety  of  having  been  the  first  Court  probably 
to  mandamtts  one  of  its  own  Judges.  In  the  second  place,  I  think 
that  the  proper  time  to  have  asked  Mr.  Justice  Lutwyche  to  have 
placed  an  objection  upon  the  case  would  have  been  when  the 
Judges  sat  as  a  Court  of  Criminal  Appeal  to  hear  the  case  reserved, 
because  then  we  might,  if  we  had  thought  fit,  have  caused  the  case 
or  certificate  to  be  sent  back  for  amendment.  I  have  very  grave 
doubts  whether  a  mandarnvs  will  lie  in  any  case,  because  the  Court 
of  Criminal  Appeal  is  formed  upon  the  model  of  the  Court  of 
Appeal  in  England,  which  consisted  of  the  Lord  Chief  Baron,  the 
two  Chief  Justices,  and  several  other  Judges.  It  may  be  some 
satisfaction  to  Mr.  MacDevitt  to  know  that  the  Court  can  see  very 
\\  ell  that  even  if  the  point  had  been  before  us  when  the  special 
case  was  signed  before  the  Court  of  Criminal  Appeal,  we  would 
scarcely  have  invited  the  learned  Judge  who  presided  at  the  trial 
to  amend  his  case.  A  Judge's  summing  up  must  not  be  regarded 
as  consisting  of  a  set  of  separate  sentences,  but  must  be  taken  as 
a  ^\hole.  The  part  which  has  been  objected  to  in  the  present 
case  might,  under  one  aspect,  appear  a  very  strong  way  of  putting 
the  matter  to  the  jury  ;  but  yet,  if  the  whole  charge  were  con- 
sidered, it  might  be  the  very  best  way  of  putting  to  the  jury  the 
true  point  which  they  had  to  decide.  It  was  not  a  point  of  law 
that  is  wished  to  be  reserved,  but  a  criticism  or  comment  on  the 
learned  Judge's  summing  up.  I  think  the  motion  ought  to  be 
refused. 


CKIMINAL  REPORTS,  1860-1907. 


39 


LuTWYCHE  J.  :  The  motion  is  made  too  late.  A  suggestion 
should  have  been  made  when  the  special  case  was  being  heard,  for 
that  would  have  been  the  time  to  have  inserted  the  proposed 
amendment  if  the  Court  had  thought  such  an  amendment  proper 
and  desirable.  I  also  think  the  point  which  was  said  to  be  a  point 
of  law  was  simply  a  comment  made  by  the  Judge  in  the  course  of 
his  summing  up  on  the  facts  in  the  case.  As  the  Chief  Justice 
has  said,  we  must  not  look  at  isolated  sentences,  but  at  the  whole 
of  the  summing  up,  in  order  to  see  the  sense  in  which  the  words 
were  used.  They  were  used  by  me  to  convey  to  the  jury  my  strong 
impression  that  the  prisoner  was  guilty.  It  was  only  another  form 
of  saying  "  Nobody  but  the  prisoner  could  have  committed  the 
deed." 

[His  Honour  then  read  a  considerable  portion  of  his  summing  up 
from  the  Northern  Argus,  which  contained,  he  said,  the  best  report 
of  his  charge  to  the  jury,] 

I  very  much  regret  that  the  point  has  been  brought  before  the 
Court,  for  it  is  very  irregular.  When  I  was  in  New  South  Wales 
the  practice  of  relying  upon  a  Judge's  summing  up  prevailed  a 
good  deal  too  much  in  the  Supreme  Court.  So  far  as  Ues  in  my 
power,  I  will  take  care  to  check  that  practice  up  here.  1  think  the. 
motion  must  be  dismissed. 

Solicitor  for  prisoner  ;   Rees  Jones. 


E.  V.  Gkiffin 
(No.  2); 

Lutwyche  J. 


[In  Banco.] 
R.  V.  PEARSON. 
[2  S,C.R.  21,] 
Criminal    Law — Venire    de    novo — Affidavit   of    juror — New    trial 
refused. 
On  an  application  for  a  writ  of  venire  facias  de  novo,  on  the  ground  of  irregu- 
larities in  connection  with  the  dehberationa  of  the  jury  on  a  criminal  trial,  Jield, 
that  an  affidavit  by  one  of  the  jurymen  as  to  the  actions  of  the  jury  after  their 
retirement  from  the  Court  could  not  be  read  upon  such  an  application. 
*B.  V.  Murphy  (7  N.S.W.  S.C.R.  24)  doubted. 

Application  to  make  absolute  a  rule  nisi  for  a  writ  of  venire 
facias  de  novo,  and  for  a  writ  of  certiorari. 

George  Pearson  was  arraigned  before  His  Honour  Judge  Innes 
and  a  common  jury  at  Maryborough  on  the  7th  August,  1868,  on  a 


1868. 
27th  November. 

Cockle  C.J. 
Lutwyche  J, 


*TbJB  decision  was  reversed  by  the  Privy  Council  (L.R.  2  P.O.  535). 


40 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


R.  V.  Pearson,     charge  of  feloniously  stealing  two  auriferous  nuggets,  valued  at 
£64,  the  property  of  George  Smith,  Pearson  being  a  bailee. 

The  prisoner  was  found  guilty,  and  sentenced  to  eighteen 
months'  imprisonment  with  hard  labour  in  the  Brisbane  Gaol. 
On  the  termination  of  the  case,  the  jury  were  locked  up  in  the 
public  Courthouse,  and  given  in  charge  to  the  baihff  of  the  Court. 
The  jury-room  was  occupied  by  another  jury.  Howard,  one  of 
the  jurymen,  had  siace  stated  that  while  the  jury  were  locked 
up  ia  the  Courthouse,  and  considering  their  verdict,  the  police 
entered  the  Courthouse  with  the  prisoner  Pearson  and  other 
prisoners,  and  remained  there  during  a  portion  of  the  time  the 
jury  were  deliberating.  Upon  the  reopening  of  the  Court,  the 
jury  complained  to  the  Judge  of  the  intrusion  of  the  police. 
While  the  jury  were  locked  up,  the  depositions,  the  notes  of  the 
Crown  Prosecutor  and  of  the  counsel  for  the  prisoner,  Roscoe's 
Criminal  Evidence,  and  other  legal  works,  were  in  the  Court, 
and  the  jury  had  access  to  and  read  some  of  them. 

Blake  and  Handy,  for  the  prisoner,  cited  R.  v.  Murphy  (7 
N.S.W.R.  24),  then  under  appeal  to  the  Privy  Council,  Straker 
V.  Graham  (4  M.  &  W.  721),  Burgess  v.  Langley  (1  D.  &  L.  21), 
Harvey  v.  Hewitt  (8  D.P.C.  598),  B.  v.  Fowler  (4  B.  &  Aid.  273), 
B.  V.  Bertrand  (L.R.  1  P.C.  520),  Gould  v.  Oliver  (2  M.  &  G.  288), 
and  read  affidavits  in  corroboration  of  the  facts. 

Cockle  C.J.  Cockle  C.J.  :   This  appUcation  must  be  refused,  on  the  ground 

that  the  evidence  is  technically  insufficient  and  inadmissible.  The 
presumption  to  be  drawn  from  the  statement  that  notes  and  books 
were  lying  on  the  Courthouse  table  is  too  faint  to  induce  the 
Court  to  grant  the  rule. 

Lutwyche  J.  LuTWYCHB  J.  :    It  is  quite  clear  from  the  authorities  that  the 

affidavit  of  a  juryman  cannot  be  received  as  to  what  passed  while 
the  jury  were  locked  up  in  a  private  room,  and  that  the  statement 
of  a  juror  to  another  person  of  what  passed  in  that  private  room 
cannot  be  accepted.  There  is  nothing,  therefore,  for  the  Court 
to  go  upon.  I  consider  this  case  is  distinguishable  from  that 
of  B.  V.  Murphy.  I  do  not  see  anything  in  the  case  to  infer  a 
miscarriage  of  justice.  I  am  not  at  all  prepared  to  go  the  length 
that  the  Full  Court  in  New  South  Wales  has  gone  in  B.  v.  Murphy, 
simply  because  the  jury  read  the  reports  of  the  trial,  for  they  read 
them  only  during  the  first  three  days,  and  if  they  had  fornied 
any  erroneous  impression  of  the  evidence,  they  could  have  been 
corrected  by  the  Judge  in  summing  up. 

Bule  refused. 


CBIMINAL  EEPOETS,  1860-1907. 


41 


[In  Banco  ] 

R.  V.  WILKIE. 

[2  S.C.R.  33.— Note.— 29  Vic,  No.  6,  is  repealed.    See  s.  398  v.  of  Criminal  Code. 

As  to  receiving  stolen  property,  see  now  s.  433  of  Criminal  Code.] 

Criminal   Law — Embezzlement — Larceny   Act    of    1865    (29    Vic, 
A'O.  6),  ss.  73,  75,  76,  96 — Person  in  service  of  the  Crown. 

The  word  "  fraudulently,"  in  s.  75  of  29  Vic,  No.  6,  is  to  be  applied  to  the 
word  "  embezzle,"  which  precedes  it  in  the  section,  as  well  as  to  the  words 
"  apply  and  dispose  of"  which  follow. 

Where  a  servant  of  the  Crown  has  received  from  the  Treasury  moneys  payable 
to  other  persons,  and  there  is  no  evidence  that  he  received  them  by  virtue  of  his 
employment,  he  cannot  be  convicted  of  embezzlement  of  those  moneys  under 
.8.  75  of  the  Larceny  Act. 

Crown  Case  Reserved  by  Lutwyche  J. 

The  prisoner  was  indicted  on  an  information  under  s.  75  of  the 
Larceny  Act  of  1865,  charging  him  with  three  separate  offences  of 
embezzlement  and  stealing,  and  a  general  verdict  of  guilty  was 
xeturned.  The  facts  appear  in  the  judgment.  It  was  submitted 
that  the  case  for  the  Crown  had  failed  in  that  the  moneys  men- 
tioned in  the  information  were  the  property  of  the  person  to  whom 
they  were  payable,  and  not  of  Her  Majesty  ;  that  ttere  was  no 
■evidence  of  the  prisoner  having  received  the  said  moneys  or  having 
■embezzled  them  ;  that  there  was  no  evidence  of  the  prisoner 
having  received  the  moneys  by  virtue  of  his  employment ;  that 
there  was  no  refusal  by  the  prisoner  to  account  for  the  moneys, 
and  that  it,  in  fact,  having  been  shown  that  the  moneys  had  been 
paid  over,  there  was  in  law  no  embezzlement  and  no  fraudulent 
intention  on  the  part  of  the  prisoner.  The  learned  Judge  refused 
to  so  direct  the  jury,  but  reserved  the  objections  for  the  Full 
•Court. 

The  prisoner  was  convicted  and  sentenced  to  three  years  penal 
servitude. 

Blake  Q.C.  and  Grfflth,  for  the  prisoner,  referred  to  R.  v.  Moah 
(Dears  626  ;  25  L.J.,  M.C.,  66).  The  persons,  to  whom  payments 
were  made,  might  have  received  them  at  the  Treasury  themselves. 
The  money  must  be  in  transit  to  the  employer.  R.  v.  Hockings 
(1  Den.  584  ;  2  Russell,  449-50)  ;  R.  v.  Gill  (Dears.  289)  ;  R.  v. 
Smith  (R.  &  R.  516).  •  The  receipt  from  the  bank  is  receipt  from 
the  Crown.  R.  v.  Gorbutt  (Dears  &  B.  166)  ;  R.  v.  Hodgson  (3 
■C.  &  P.  422)  ;  R.  v.  Evan  Owen  Jones  (7  C.  &  P.  833)  ;  R.  v. 
Williams  (7  C.  &  P.  338). 


1869. 

9th,  lOlh 
September. 

Cockle  C.J. 
Lutwyche  J. 


42 


QUEENSLAND  JUSTICE  OP  THE  PEACE. 


R.  V.  WiLKiE.  Pring  Q.C.,  for  the  Crown  :   Section  75,  refers  as  much  to  money 

coming  from  the  Treasury  as  to  money  going  from  the  Treasury 
entrusted  to  him  by  virtue  of  his  employment. 

Lutwyche  J.  LtrTWYCHE  J.  :   I  have  now  no  hesitation  in  coming  to  the  con- 

clusion that  the  conviction  was  erroneous.  I  certainly  thought, 
at  the  trial,  that  the  words  of  s.  73  of  the  Larceny  Act,  and  those 
of  s.  75  so  far  as  related  to  the  offence  of  embezzlement,  being, 
different  in  phraseology,  the  Legislature  might  have  intended 
to  apply  a  more  restricted  meaning  than  was  formerly  applied 
to  the  word  embezzlement.  I  am  sorry  that  I  had  no  oppor- 
tunity at  the  trial  of  fortifjdng  my  judgment  by  a  reference  to 
any  of  those  cases  just  cited,  for  I  was  only  referred  to  R.  v.  Moah. 
I  certainly  think  now  that  the  word  "  embezzle  "  means  fraudu- 
lent and  felonious  embezzlement.  I  am  more  lead  to  that  con- 
clusion by  a  more  careful  consideration  of  the  terms  of  s.  75, 
I  take  it,  therefore,  that  the  Legislature  meant  to  apply  the 
word  "  fraudulent  "  to  the  word  embezzle,  as  well  as  to  the 
words  "  apply  or  dispose  of  ;  "  and  the  context  seems  to  strengthea 
that  conclusion.  Another  clause  of  the  Statute  (s.  96)  has  been 
pointed  out  to  me  by  the  Chief  Justice — that  as  to  the  receiving 
of  stolen  goods.     The  words  are  : 

"  Whosoever  shall  receive  any  chattel,  money,  valuable  security  or  other 
property  whatsoever,  the  stealing,  taking,  extorting,  obtaining,  embezzling  or 
otherwise  disposing  whereof  shall  amount  to  a  felony  either  at  common  law  or 
by  virtue  of  this  Act,  knowing  the  same  to  have  been  feloniously  taken,  stolen, 

shall  be  guilty  of  felony,  and  may  be  indicted  an^  convicted  as- 

an  accessory  after  the  fact  or  for  a  substantive  felony,  and  in  the  latter  case, 
whether  the  principal  felon  shall  or  shall  not  have  been  previously  convicted  or 
shall  or  shall  not  be  answerable  to  justice,  and  every  such  receiver  howsoever 
convicted  shall  be  liable,  at  the  discretion  of  the  Court,  to  be  kept  in  penal 
servitude  for  any  term  not  exceeding  fourteen  years,  etc." 

It  cannot  be  intended  that  a  simple  receipt  of  any  property,  which 
has  been  stolen,  will  make  a  man  liable  to  be  indicted  as  a  receiver, 
for,  if  so,  a  constable  who  takes  stolen  goods  into  his  possession 
may  be  indicted  under  s.  96.  We  must  construe  enactments 
according  to  the  meaning  of  terms  which  have  obtained  in  the 
law  a  certain  definite  meaning  ;  and  I  think  I  have  been  wrong 
in  the  necessarily  hasty  view  I  took  on  the  occasion  of  the  trial. 
I  should  have  been  glad  to  have  received  more  assistance  than 
I  did  ;  but,  of  course,  a  judge  has  to  do  the  best  he  can  at  the 
time.  I  was  not  freed  from  responsibility,  if  I  did  not  get  the 
amount  of  assistance  which  I  might  fairly  expect  from  the  Bar, 


CRIMINAL  EEPOETS,  1860-1907. 


43 


In  the  Larceny  Act  a  distinction  between  embezzlement  and 
larceny  is  carefuUy  drawn.  There  is  a  distinct  section  (s.  75) 
with  reference  to  the  offence  of  larceny  by  persons  in  the  Queens- 
land Civil  Service  and  the  PoUce,  and  another  clause  which 
relates  to  embezzlement,  and  to  a  fraudulent  application  or 
distribution  of  money  ;  and  perhaps  if  the  words  "  fraudulent 
appUcation  "  had  been  followed  in  the  information  in  this  case, 
the  evidence  might  have  supported  it.  But  there  would  still 
have  remained  the  question  of  fraud,  which  I  was  asked  to  put 
to  the  jury,  and'thought  it  unnecessary  to  do  so.  I  told  the 
jury  it  was  quite  sufficient,  if  they  thought  there  had  been  a 
wilful  misappropriation  of  public  money  by  the  prisoner,  and 
declined  to  put  that  question  to  them.  The  main  question  in 
this  case  turned  upon  that  of  embezzlement,  and  I  certainly 
think  there  has  been  no  evidence  of  embezzlement,  in  the  meaning 
of  that  term  that  has  been  laid  down,  to  go  to  the  jury.  The 
prisoner  received  money  from,  the  Treasury,  representing  the 
Queen.  He  did  not,  as  was  the  case  with  the  prisoner  whom  I 
tried  at  Ipswich  in  April  last,  intercept  money  on  its  way  to  the 
Treasury  ;  but  he  received  it  from  the  Treasury,  and,  therefore, 
if  other  facts  would  have  supported  the  charge,  he  might  have  been 
found  guUty  of  larceny,  if  my  attention  had  been  called  to  the 
fact  that  the  evidence  would  support  such  charge.  Had  my 
attention  been  so  called,  I  might  then  have  directed  the  jury 
to  find  the  prisoner  guilty  of  larceny,  not  embezzlement.  I 
cannot  complain  that  I  was  not  told  the  offence,  if  anything, 
amounted  to  larceny.  I  ought  to  have  seen  that  for  myself, 
but  I  did  not.  The  jury  having  found  a  general  verdict  of 
guilty,  the  conviction  must  be  quashed  according  to  the  authority 
of  R.  V.  Gorbutt  (supra),  even  if  the  evidence  would  have  sup- 
ported a  charge  of  larceny.  Under  all  the  circumsances,  I  am 
clearly  of  opinion  that  the  conviction  was  erroneous,  and  ought  to 
be  quashed. 


B.  u.  WiLKIE. 

Lutwyche  J. 


Cockle  C.J.  :    I  concur. 


Cockle  C.J. 


Conviction  quashed. 


44  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

R.  V.  ARCHIBALD. 
[2  S.C.R.  47.— Note.— Footnote  should  read  See  58  Vic.,  No.  23,  s.  10  (Criminal 
Law  Amendment  Act  of  1894).    As  to  confessions  see  also  R.  v.  Many  Many 
(6  Q.L.J.  224,  post)  and  MacNamara  v.  Edwards,  Ex  parte  Edwards  (1907, 
S.R.Q.  9,  post.] 

1869.  Crown    Case    Reserved — Voluntary  confession — Evidence — 0§er  of 

7th  December.  j  /-r      j  ■ 

'pardon — Caution . 

1  iitiaiche  J  ^-  '^^°  ^^^  ^^^"^  arrested  as  an  accessory  before  the  fact   to   a  murder  was 

informed  by  the  lock-up  keeper  that  there  was  a  reward    offered   and   a  free 

pardon,  to  any  one  but  the  murderer,  to  any  person  giving  information  which 
would  lead  to  the  apprehension  of  the  miirderer.  A.  said  he  had  intended  to 
teU  the  Police  Inspector  what  he  knew  on  his  arrest,  and  the  lock-up  keeper 
repUed  that  he  should  have  done  so,  as  it  would  have  been  better  for  himself. 
A.  then,  at  his  own  request,  saw  the  Police  Inspector,  and  said  he  wished  to 
make  a  statement.  The  inspector  then  took  A.  before  a  magistrate,  and  both 
the  inspector  and  the  magistrate  warned  A.  that  any  statement  made  by  liiin 
might  be  given  in  evidence  against  him.  A.  then  made  a  statement,  and  when 
the  same  was  about  half  completed  the  magistrate  told  him  that  the  evidence 
was  not  being  received  as  Queen's  Evidence.     A.  completed  the  statement. 

Hdd  that  the  statement  was  not  induced  by  the  o£Eer  of  reward  or  pardon, 
and  being  voluntary  was  rightly  admitted  against  the  prisoner.* 

R.  V.  Rosier  (Phillips  Ev.,  414),  approved. 

R.  V.  BlacHbum  (6  Cox  C.C.  333)  distinguished. 

Crown  Case  Reserved  by  Mr.  Justice  Lutwyche,  on  the  trial 
of  Alexander  Archibald  at  the  Rockhampton  Circuit  Court,  in 
October  last,  for  being  an  accessory  before  the  fact  to  the  murder 
of  Patrick  Halligan,  by  George  Palmer  and  John  Williams. 

Pring  A.G.  And  Griffith,  for  the  Crown. 

Blake  Q.C.  for  the  prisoner. 

The  case  stated  was  as  follows  : — "  In  the  course  of  the  trial, 
the  Attorney-General  tendered,  on  behalf  of  the  Crown,  a  state- 
ment made  by  the  prisoner  in  the  presence  of  a  magistrate  of 
the  territory,  which  statement  was  taken  down  in  writing  in  the 
presence  of  the  magistrate  and  the  prisoner,  and  was  afterwards 
read  over  to  the  prisoner  and  signed  by  him.  An  objection  was 
raised  to  the  admissibility  of  this  document,  on  the  ground 
that  it  was  made  after  a  promise  had  been  given  to  the  prisoner, 
and  while  he  was  under  arrest,  but  I  over-ruled  the  objection, 
and  allowed  the  statement  to  go  to  a  jury,  reserving,  at  the 
request  of  the  prisoner's  advocate,  for  the  opinion  of  the  Supreme 

*See  58  Vic,  No.  2,  s.  10. 


CRIMINAL  REPORTS,  1860-1907.  45 

Court,  this  question  of  law  :  Was  the  statement  properly  received  ^-  "•  Arohibald. 
in  evidence  or  not  ?  On  the  night  of  the  12th  May  last,  at  a 
pubUc  meeting  of  the  inhabitants  of  Rockhampton,  held  at  the 
Union  Hotel  Theatre,  the  Police  Magistrate  of  Rockhampton 
received  a  telegram  purporting  to  have  been  despatched  by  the 
Colonial  Secretary,  in  which  a  reward  of  £300  was  offered  for  any 
information  that  would  lead  to  the  apprehension  or  conviction  of 
the  murderer  or  murderers  of  Patrick  Halligan,  and  a  free  pardon 
to  the  accompUce  not  actually  the  murderer.  It  did  not  appear 
that  the  prisoner,  who  was  arrested  the  same  night  about  9  p.m., 
at  the  Lean  Creek  Hotel,  three  miles  from  Rockhampton,  was 
at  the  meeting  ;  but,  after  his  arrest,  and  while  he  was  in  the 
lock-up,  he  was  told  by  the  lock-up  keeper  that  there  was  a 
reward  offered  and  a  free  pardon  to  any  person  not  actually  the 
murderer.  The  prisoner  said  that  he  had  a  mind  to  tell  Mr. 
EUiott  (Sub-inspector  of  PoUce)  when  he  was  arrested,  and  the 
lock-up  keeper  replied  that  he  should  have  done  so,  as  it  would 
have  been  better  for  himself.  The  prisoner  then  said  that  he 
would  tell  Mr.  EUiott  all  that  he  knew  about  it.  The  prisoner 
soon  afterwards  saw  Mr.  Elliott  and  said,  "  I  was  coming  in  to 
tell  you  about  it,  but  I  was  waiting  until  the  meeting  should  be 
over,  and  a  reward  offered,  as  I  wished  you  to  get  the  reward." 
The  prisoner  next  told  Mr.  Elliott  that  he  wished  to  make  a 
statement.  Mr.  Elliott  took  the  prisoner  before  Mr.  Murray, 
the  Police  Magistrate  of  Springsure,  and  Chief  Inspector  of  PoUce 
of  the  Northern  District,  and  said  to  the  prisoner  :  "  Do  you 
know  that  he  is  a  magistrate  ?  Do  you  wish  to  make  a  state- 
ment ?  "  The  prisoner  said  that  he  knew  Mr.  Murray,  and  that 
he  did  wish  to  make  a  statement.  Mr.  ElUott  said,  "Whatever 
you  say  will  be  taken  down  in  writing,  and  given  in  evidence 
against  you."  The  prisoner  said,  "  All  right,"  or  "  Oh !  very 
well,"  and  Mr.  Murray  then  repeated  the  caution,  saying,  "  Now, 
Archibald,  be  cautious  what  you  say,  as  it  will  be  taken  down  in 
writing  and  may  be  used  against  you  on  your  trial."  The 
prisoner  said,  "  All  right,  I  understand  what  I  am  about."  Mr. 
Murray,  in  giving  his  evidence,  deposed  that  when  the  statement 
was  about  half  completed  he  told  the  prisoner  to  bear  in  mind 
that  the  statement  was  not  being  accepted  as  Queen's  Evidence, 
and  that  the  Judge  would  have  to  decide  that  question  ;  but 
the  Sergeant  of  the  Police,  who  was  engaged  in  reducing  the 
prisoner's  statement  into  writing,  deposed  that  he  did  not  hear 
Mr.  Murray  say  anything  about  Queen's  Evidence,  and  that  it 


46  QUEENSLAND   JUSTICE   OP   THE   PEACE. 

E.  V.  Aechiealp.  could  not  have  been  said  without  his  hearing  it.  Nothing  was 
said  either  by  or  to  the  prisoner  after  he  had  been  brought  before 
Mr.  Murray  about  a  pardon  or  a  reward.  The  statement  which 
was  given  in  evidence  contained  admissions  tending  strongly 
to  show  the  guilt  of  the  prisoner,  and  he  was  found  guilty  and 
sentenced  to  death,  but  remains  in  Rockhampton  gaol  pending 
the  decision  of  the  Supreme  Court  on  the  question  of  law  above 
stated."'   !. 

Blake  contended  that  the  mere  knowledge  by  the  prisoner  that 
a  reward  and  free  pardon  had  been  offered  by  the  Government 
for  the  discovery  of  any  person,  who  had  not  actually  committed 
the  murder,  would  not  be  sufficient  to  render  his  confession 
inadmissible  ;  but  if  it  was  shown,  in  addition,  that  the  knowledge 
had  operated  on  the  prisoner's  mind  in  making  the  confession, 
then  it  would  be  rendered  inadmissible  :  R.  v.  Boswell  (C.  &  M. 
684,  and  3  Russell  on  Crimes,  373)  ;  R.  v.  Blackburn  and  others 
(6  Cox  333).  In  Archibald's  case  it  was  shown  that  he  had  the 
knowledge,  and  that  it  had  operated  on  his  mind,  and  the  caution 
he  had  received  was  immaterial.  The  prisoner  may  have  said 
to  himself  :  "  If  I  don't  make  this  confession  I  cannot  benefit 
from  it ;  I  will  run  the  chance  of  it  being  used  against  me." 
The  caution  might  not  have  removed  the  state  of  mind  under 
which  Archibald  was  induced  to  make  the  statement.  He  might 
not  have  beUeved  the  caution.  He  was  told  of  the  proclamation, 
and  immediately  expressed  the  wish  to  make  a  confession.  He 
was  in  the  very  position  of  a  person  to  whom  the  proclamation 
was  directed,  being  cognizant  of  the  crime,  but  not  having  com- 
mitted it.  Would  anyone  say  that  the  proclamation  had  not 
operated  very  strongly  on  the  prisoner's  mind. 

[Ltjtwychb  J.  :  I  have  no  doubt  it  would.  I  hope  that  in  all 
future  proclamations  accessories  before  the  fact  will  be  expressly 
excepted  from  the  offer  of  pardon  or  reward.] 

It  was  evident  that  the  caution  was  not  sufficient  to  remove 
the  impression  from  the  prisoner's  mind  produced  by  the 
proclamation,  and  it  was  reasonable  to  say  that  the  making  of 
the  confession  was  the  very  thing  that  would  have  entitled  him 
to  the  pardon  offered.  If  he  had  said  one  word  about  his  state- 
ment being  secured  as  evidence  he  must  have  been  discharged, 
as  his  case  would  then  be  that  of  B.  v.  Blackburn.  There  was, 
however,  no  substantial  difference  between  the  two.  The  question 
was  :     "  Was   the   evidence   purely    voluntary  ?  "     It   was  not 


CRIMINAL   REPORTS,   1860-1907.  47 

purely   voluntary  if  there  had  been  anything  to  influence  the  ^-  "■  A.rchibald. 
prisoner,  such  as  the  proclamation  in  this  case. 

Pring  A.G.,  for  the  Crown  :  The  case  of  R.  v.  Boswell  had  been 
fully  distinguished  in  the  subsequent  case  of  jR.  v.  Dinghy  (1  C. 
&  K.  637),  which  was  particularly  applicable  to  the  present  case. 
In  R.  V.  Dingley  a  caution  had  been  given,  but  not  in  R.  v.  Boswell, 
and  in  the  former  the  confession  was  held  admissible.  In  Archi- 
bald's case  he  was  twice  told  that  his  statement  would  be  used 
against  him,  and  no  promise  whatever  was  made  to  him,  and  the 
caution  was  given  not  by  a  person  not  having  authority,  but  by  a 
justice  of  the  peace.  In  Boswell' s  Case  the  statement  was  ren- 
dered inadmissible  on  the  express  ground  that  it  was  made  on  an 
inducement  held  out  by  an  authorised  person.  The  present 
ease  differed  entirely  from  that.  Not  only  was  no  inducement 
held  out  by  an  authorised  person,  but  there  was  evidence  that 
he  was  distinctly  cautioned  by  an  authorised  person,  not  only 
once,  but  twice,  and  told  there  was  no  hope  that  his  statement 
■would  be  secured  as  Queen's  evidence.  It  would  not  do  to  say 
that  the  mere  knowledge  of  a  reward  having  been  offered  oper- 
ated to  such  an  extent  on  the  prisoner's  mind  that  the  impression 
could  not  have  been  got  rid  of  by  a  twice-repeated  caution.  The 
prisoner  did  not  intimate  at  the  time  that  he  made  the  statement 
that  the  offer  of  pardon  and  reward  had  operated  on  his  mind 
with  respect  to  his  own  position  ;  but  he  told  Mr.  Elliott  that 
he  made  the  statement  in  order  to  enable  him,  Elliott,  to  get  the 
reward.  In  the  case  of  R.  v.  Clewes  (4  C.  &  P.  221),  an  absolute 
inducement  had  been  given,  a  hope  of  pardon  held  out ;  but  the 
hope  was  destroyed,  and  the  confession  held  to  be  admissible. 
If- the  learned  counsel  for  the  prisoner  was  right  in  his  argument, 
the  mere  knowledge  of  a  free  pardon  having  been  offered  must, 
per  se,  be  held  to  operate  on  a  prisoner's  mind,  notwithstanding 
repeated  cautioning.  In  Blackburn's  Case  a  caution  was  given, 
but  a  distinction  between  that  and  Archibald's  was  :  that  in  the 
former  there  had  been  something  more  than  a  simple  knowledge 
of  pardon  offered  on  the  part  of  the  prisoner.  It  was  shown 
that  he  had  apparently  a  notion  that  he  would  be  received  as 
Queen's  evidence.  There  had  been  referred  to  at  the  trial  the 
cases  of  R.  v.  Rosier  and  R.  v.  Lingate  (Phillips  on  Evidence,  414) . 
These  two  cases  went  to  show  that  a  caution  given  subsequently 
to  an  offer  of  reward  or  pardon  was  sufficient  to  efface  such  offer. 
In  the  case  of  R.  v.  Howes  (3  Russell,  384),  the  prisoner,  previous 
to  making  a  statement,  was  told  that  it  might  do  him  good  ; 


48  QUEENSLAND   JUSTICE    OF   THE   PEACE. 

E.  V.  Aeohibald.   i)ut  it  Tffg^s  subsequently  held  to  be  admissible  against  him.     Coun- 
sel  also  referred  to  R.  v.  Berrigan  (3  Russell  376). 

Blake,  in  reply,  contended  that  Archibald's  case  was  entirely 
different  from  any  cited  by  his  learned  friend.  In  those  oases, 
out  of  the  three  in  which  an  inducement  was  held  out,  in  two  it 
was  held  out  by  constables,  and  in  the  third,  by  a  coroner,  and  it 
was  afterwards  negatived  by  a  magistrate,  when  the  Court  held 
that  the  caution  of  the  latter  was  sufficient  to  efface  any  impression 
received  by  the  prisoner  from  what  the  coroner  said.  It  was  not 
to  be  supposed  that  Archibald  would  necessarily  place  much 
reliance  on  the  assertion  of  Mr.  Murray  or  Mr.  EUiott  that  the 
confession  would  be  used  against  him.  They  were  not  in  a 
position  to  say  whether  or  not  it  would  have  been  used  as  evidence 
against  the  prisoner.  The  proclamation  was  issued  by  the 
Governor  of  the  Colony  through  the  Government,  and  Mr.  Murray 
and  Mr.  Elliott  could  not  interfere. 

Cockle  C.J.  Cockle  C.J.  :  Blackburn's  case  certainly  goes  a  very  great  way. 

It  appears  that  the  prisoner  was  told,  before  he  would  say  any- 
thing, that  his  statement  would  be  used  against  him.  That 
statement  was  tendered  as  evidence  to  the  presiding  judge,  Mr. 
Justice  Talfourd,  and  rejected  by  him,  after  consultation  by  Mr. 
Justice  Williams,  on  the  ground  that  it  appeared  that  the  prisoner, 
in  making  it,  had  a  notion  that  he  would  be  received  as  Queen's 
evidence.  We  should,  of  course,  give  every  consideration  to  cases 
decided  by  eminent  judges,  but  we  are  also  bound  to  exercise 
judgment  of  our  own  in  the  matter.  It  must  be  remembered 
that,  in  these  mixed  cases  of  law  and  fact,  it  is  almost  impossible 
to  lay  down  any  rule  that  can  be  applied  with  certainty  and 
definitely  in  all  cases.  We  must,  therefore,  look  in  this  case 
to  the  words  used,  and  to  the  circumstances  of  the  case,  as  dis- 
closed in  the  learned  judge's  report.  The  prisoner  was  indicted  as 
an  accessory  before  the  fact  to  a  murder  alleged  to  have  been 
comnjitted  by  two  other  persons.  He  was  apprehended,  and, 
when  in  custody,  the  lock-up  keeper  told  him  that  a  reward  and 
free  pardon  had  been  offered  to  any  person  not  actually  the 
murderer.  We  ought  not  to  interpret  this  offer  as  being  addressed 
so  directly  to  the  prisoner  as  to  lead  him  to  think  that  it  was  a 
special  offer  to  him,  for  at  the  time  the  number  of  persons  who 
had  been  engaged  in  the  transaction  was  uncertain.  On  being 
informed  of  the  offer,  prisoner  said  that  he  had  a  mind  to  tell 
Mr.  Elliott  when  he  was  arrested,  and  the  lock-up  keeper  rep 


CEIMINAL   REPORTS,    1860-1907.  ^  49 

that  he  should  have  done  so,  as  it  would  have  been  better  for  him-  ^-  "•  Archibald. 

self.     We  may  regard  the  alleged  inducement  in  a  double  point       Cookie  C.J. 

of  view — first,  as  an  inducement  arising  from  the  offer  of  reward 

and  pardon,   and  second,   as   an  inducement  from  the  lock-up 

keeper   himself.     These   words    of   the   lock-up   keeper   may   be 

interpreted  as  meaning  that  it  would  have  been  better  for  the 

prisoner  had  he  told  sooner,  or  as  a  merely  formal  continuation  of 

the  conversation,  or  as  an  expression  of  opinion  that  he  was  too 

late  in  making  his  statement.     On  seeing  Mr.  Elliott,  the  prisoner's 

words  seemed  to  be  rather  an  excuse  for  making  his  statement  so 

late,  and  it  is  possible  that  the  interpretation  put  by  him  on  the 

lock-up  keeper's  words  was,  that  it  was  too  late.     If  this  is  to 

be  regarded  as  an  inducement    of    either  kind,    I  think  if  the 

prisoner  had  then  and  there  told  aU  he  had  to  tell  to  Mr.  Elhott, 

that  his  statement  ought  not  to  have  been  admitted  in  evidence, 

and  my  learned  brother  has  already  intimated  the  same  opinion. 

But  he  did  not  then  and  there  make  a  statement  to  EUiott. 

EUiott  took  him  at  once  before  a  magistrate,  and,  on  his  saying 

that  he  wished  to  make  a  statement,  told  him  that  whatever  he 

said  would  be  taken  down  in  writing,   and  given  in  evidence 

against    him.     The    learned    counsel    for    the    prisoner    seemed 

to  have  abandoned  the  ground  that  the  prisoner  confessed  on 

the  strength  of  any  inducement  held  out  by  the  lock-up  keeper, 

but  argued  on  the  ground  of  the  inducement  of  the  reward  and 

pardon.     I  shall  examine  the  matter,  therefore,  with  reference 

to  that  ground.     I  think  there  can  be  no  doubt  that,  if  the  prisoner 

made  this  statement  under  the  reasonable  belief  that  in  doing  so, 

he  was  either  making  it  as  a  witness  for  the  Crown,  or  doing 

something   preUminary  to   becoming   a   witness   for  the  Crown, 

then,  on  the  strength  of  the  recorded  cases  and  general  ground 

of  jurisprudence  and  public  policy,  this  statement  should  be 

excluded  ;    because,  if  once  the  notion  get  abroad  that  offers 

by  the  Government  of  reward  and  pardon  are  to  be  used  as  snares 

for  admissions  and  confessions,  they  will  fail  as  an  inducement 

for    confessions.      We    must,     therefore,     look    to    whether    the 

prisoner  had  reasonable  grounds  for  beheving  that  he  was  acting 

in  the  capacity  of  a  witness  for  the  Crown.     To  say  that  he 

acted  under  the  influence  of  hope  or  fear  would  not,  I  think, 

cause  the  exclusion  of  this  statement  ;    because  most  statements 

made  in  criminal  cases  are  made  under  such  influences.     They 

were  to  consider  whether  Archibald  made  the  statement  under  a 

reasonable  behef  that  he  did  so  as  a  witness,  or  preparatory  to 


50 


QUEENSLAND    JUSTICE   OF  THE   PEACE. 


E.  V.  Abchibald. 
Cockle  C.J. 


Lutwyche  J. 


becoming  so.  There  Avas  nothing  in  the  demeanour  of  Elliott 
calculated  to  inspire  the  prisoner  with  such  a  behef.  He  does 
not  invite  him  to  a  confession,  but  takes  him  before  a 
magistrate,  puts  questions  to  him  which  do  not  imply  a  very 
inviting  demeanour,  and  tells  him  that  what  he  says  will  be 
taken  down  and  used  as  evidence  against  him.  These  words 
were  not  consistent  with  the  making  an  impression  that  Archibald 
was  to  be  treated  as  a  witness.  The  words  used  by  Murray 
were  stronger  still.  He  said  to  Archibald,  "  Be  cautious  what 
you  say,  as  it  will  be  taken  down  in  writing,  and  may  be  used 
against  you  at  your  trial."  Witnesses  are  not  generally  placed 
on  their  trial,  and  Archibald's  object  in  making  the  confession 
was  to  avoid  being  tried.  One  would  think  that  these  words 
would  have  been  sufficient  to  raise  grave  doubts  in  Archibald's 
mind  as  to  whether  when  making  this  statement,  he  did  so  as  a 
witness.  I  think,  therefore,  we  must  take  it  that  there  is  sufficient 
evidence  to  show  that  any  reasonable  impression  of  T^chibald 
that  he  was  to  be  taken  as  a  witness  must  have  been  effaced  from 
his  mind.  In  the  case  of  R.  v.  Rosier,  the  prisoner  having  been 
told  that  it  would  be  better  to  confess,  asked  a  magistrate  if  it 
would  be  better,  and  he  replied  that  he  could  not  say  that  it 
would.  The  subsequent  confession  was  admitted.  What  the 
magistrate  said  there  amounted  to  this  "  what  you  say,  if  you 
say  anything,  may  endanger  you."  In  that  case  the  judges  were 
unanimous  in  holding  that  the  confession  was  admissible  in  evi- 
dence, on  the  ground  that  the  magistrate's  answer  was  sufficient 
to  efface  any  impression  that  the  constable  might  have  raised. 
The  case  of  R.  v.  Lingate  is  to  the  same  effect.  For  these  reasons 
I  am  of  opinion  that  Archibald's  statement  must  be  deemed  to 
have  been  voluntary,  that  it  was  properly  admitted  in  evidence, 
and  consequently  that  the  conviction  must  be  confirmed. 

Ltjtwyche  J. :  We  have  to  consider  how  far  the  promise  of 
pardon  operated  on  the  mind  of  Archibald,  so  as  to  induce  him  to 
make  the  statement.  In  the  first  place,  it  is  to  be  observed  that 
it  does  not  appear  he  was  present  at  the  meeting  when  the  tele- 
gram, purporting  to  be  from  the  Colonial  Secretary,  was  read, 
and  that  he  received  information  of  that  fact  from  the  lock-up 
keeper,  a  person  who  might  have  been  telling  him,  for  purposes 
of  his  own,  an  untrue  story.  If  the  statement  had  been  made  on 
such  an  untrue  story  it  would  have,  consequently,  been  inad- 
missible. But,  as  the  case  stands,  we  must  take  it  that,  though 
the  promise  was  made  by  the  Colonial  Secretary,  the  prisoner  had 


CRIMINAL   EEP0RT8,  1860-1907.  51 

no  better  knowledge  of  the  fact  than  that  obtained  from  the  Ups  ^-  '•'•  ■^ch^b^I'''- 
of  a  lock-up  keeper,  a  person  in  a  very  inferior  position.  Then,  Lutwyche  J. 
how  far  does  this  promise  operate  on  the  prisoner's  mind  ?  When 
EUiott  goes  in  and  sees  him,  he  says  :  "  I  was  coming  in  to  tell 
you  about  it,  but  I  was  waiting  until  the  meeting  would  be  over, 
and  a  reward  offered,  as  I  wished  you  to  get  it."  Not  a  word 
there  about  a  pardon.  So  far,  therefore,  there  is  no  affirmative 
evidence  of  the  operation  of  the  promise  of  pardon  on  the  prisoner's 
mind.  Being  taken  by  Mr.  Elliott  before  Mr.  Murray,  he  is  at  once 
told  by  the  former  :  "  Whatever  you  say  will  be  taken  down 
in  writing  and  given  in  evidence  against  you."  Now,  here  was 
a  person,  in  a  superior  position  to  the  lock-up  keeper,  who  gives 
him  that  direct  warning,  and  that  warning  was  repeated  by  Mr. 
Murray  in  still  more  precise  terms,  as  follows  :  — "Now,  Archi- 
bald, be  cautious  what  you  say,  as  it  will  be  taken  down  in 
writing,  and  may  be  used  against  you  at  your  trial."  That,  to 
my  mind,  would  have  been  quite  sufficient  to  have  effaced  any 
impression,  if  any  such  had  been  created,  that  he  could  obtain  a 
pardon  from  the  Crown.  But,  further,  he  was  distinctly  informed 
before  the  statement  was  completed,  when  it  was  half  completed, 
that  it  was  not  being  accepted  as  Queen's  evidence,  and  that 
the  judge  would  have  to  decide  that  question.  There  was  affirm- 
ative testimony  that  he  was  so  informed,  and,  although  the 
constable  who  took  down  the  prisoner's  statement  says  that  he 
did  not  hear  it,  and  that,  if  said,  he  must  have  heard  it,  that 
proves  little,  for  he  may  not  have  recollected  that  the  words 
were  used,  or  may  not  have  gathered  their  purport.  Unless  we 
are  to  go  to  the  length  of  saying  that,  after  a  reward  has  been 
offered  by  the  Crown,  no  caution,  however  strong  and  precise  in 
its  terms,  would  be  sufficient  to  prevent  a  prisoner's  statement 
being  used  in  evidence  against  him,  I  think  we  must  hold  that, 
in  this  case,  the  statement  was  properly  received.  Blackburn's 
case  certainly  goes  a  great  way,  but,  the  distinction  is  that  there 
the  judges  came  to  the  conclusion  that  there  was  affirmative 
evidence  of  an  impression  on  the  prisoner's  mind  that  he  would 
be  received  as  Queen's  evidence.  Here  there  is  no  such  affirm 
ative  evidence,  but  it  appears  that  such  an  idea  was  distinctly 
negatived.  I  prefer  to  rest  my  judgment  on  Rosiefs  case,  which 
was  a  decision  of  a  Full  Court,  and  appears  to  me  to  be  most 
consistent  with  true  principles.  I  think  the  conviction  should 
be  affirmed. 

Conviction  affirmed. 


52 


QUEENSLAND    JUSTICE   OF  THE    PEACE. 


1869. 

1 7th  December. 

1870. 

I6tU  March. 

Cockle  a.J. 
Lutwyche  J. 


[In  Banco]. 

GOLDSMITH  v.  ROCHE. 
[2  S.C.K.  55.] 

Cattle  Stealing  Prevention  Act  (17  Vic,  No.  3),  s.  3— Detention  of 
a  horse — Absence  of  stealing — Limitation — Practice — Supple- 
menting depositions  by  affidavits. 

A  prohibition  was  granted  to  restrain  further  proceedings  on  an  order  for  the 
restitution  of  a  horse,  under  s.  3  of  17  Vic,  No.  3,  no  evidence  having  been 
adduced  that  the  horse  was  stolen,  or  stolen  within  twelve  months  of  the  com- 
mencement of  the  proceedings. 

Affidavits  are  not  admissible  to  supplement  the  depositions  as  to  what  took 
place  before  justices. 

Quaere,  whether  s.  3  of  17  Vic,  No.  3,  is  a  penal  section. 

Motion  to  make  absolute  a  rule  nisi  for  a  prohibition  restrain- 
ing G.  W.  EUott,  P.M.,  H.  T.  Plews,  and  J.  Wonderley,  JJ.P., 
from  further  proceeding  on  an  order,  dated  19th  November,  1869, 
whereby  Frederick  WiUiam  Roche  was  ordered  to  deliver  up  a 
horse  to  Edward  Goldsmith,  who  had  laid  an  information  under 
s.  3  of  The  Cattle  Stealing  Prevention  Act  of  1853. 

On  7th  September,  1869,  Roche  appeared  at  the  Police  Court, 
Dalby,  to  answer  a  complaint  preferred  against  him  by  Goldsmith 
for  the  unlawful  detention  of  a  horse,  alleged  to  be  the  property 
of  the  latter,  when  the  summons  was  dismissed.  On  16th 
November  Roche  was  served  with  another  summons,  issued  on 
the  information  of  Goldsmith,  for  the  restitution  to  him  by  Roche 
of  the  same  horse,  under  s.  3  of  17  Vic,  No.  3,  and  alleged  that 
the  horse  in  dispute  had  been  stolen  from  Highfields,  and  found 
in  Roche's  possession,  but  did  not  charge  Roche  or  any  other 
person  with  the  stealing.  From  the  depositions  it  appeared  that 
the  horse  in  dispute  was  claimed  by  Roche  and  Goldsmith.  The 
latter  deposed  to  having  purchased  it  in  1867  from  one  Ballard, 
Roche  was  not  examined  ;  but  one  Wilkie  deposed  that  he  had 
bred  the  horse,  and  sold  him  to  one  Robinson,  who  subsequently 
delivered  the  horse  to  him  for  Roche,  and  that  Robinson  had 
given  up  the  horse  in  consequence  of  being  unable  to  meet  a  debt 
due  by  him  to  Roche.  There  was  no  evidence  that  the  horse  had 
been  stolen  at  any  time,  though  there  was  evidence  of  a  belief 
that  it  had  been  stolen.- 

The  grounds  for  the  rule  nisi  were  : — (1)  That  it  appeared  by 
the  evidence  that  the  defendant  set  up  a  bona  fide  claim  of  title. 
(2)  That  the  title  to  property  being  in  question,  the  justices  had 


CRIMINAL  REPORTS,  1860-1907. 


53 


no  jurisdiction.  (3)  That  the  justices  wrongfully  refused  to  hear 
«vidence  of  a  previous  adjudication  in  respect  of  the  same  subject 
matter.  (4)  That  there  was  no  evidence  of  the  stealing  of  the 
horse,  the  subject  matter  of  the  information.  (5)  That  there  was 
no  evidence  of  the  stealing  of  the  horse  within  twelve  months 
before  the  date  of  the  information.  (6)  That  there  was  no  evi- 
dence of  the  stealing  of  the  horse  within  twelve  months  before  the 
•date  of  the  information,  or  of  the  commencement  of  the  proceed- 
ings, or  of  the  order.  (7)  That  the  conviction  or  order  was  against 
the  evidence. 

When  the  rule  nisi  was  granted,  leave  was  given  to  file  additional 
affidavits  by  Mr.  Ocock,  and  other  affidavits,  provided  they  be  filed 
iour  clear  weeks  before  the  day  of  return,  including  copies  of 
preceedings  in  both  cases. 

Affidavits  were  read,  including  those  of  Messrs.  EHott  and 
Wonderley,  who  denied  that  any  evidence  of  the  previous  case 
heard  at  Dalby  was  tendered  by  Roche. 

Griffith  moved  the  rule  absolute. 

Handy,  for  the  respondent,  showed  cause. 

The  following  authorities  were  cited  : — R.  v.  Dodson  (9  Ad.  & 
Ell.  704)  ;  Ex  parte  Rusden ;  Ex  parte  Preston  (Wilkinson's 
Magistrate,  pp.  97,  98) ;   Ex  parte  Ivill  [2  N.S.W.  S.C.R.  (L.),  92.] 

Cockle  C.J.  :  It  does  not  appear  on  the  depositions  that  there 
was  satisfactory  evidence  before  the  justices  that  the  horse  was 
stolen,  and  stolen  within  a  year  of  the  commencement  of  the 
preceedings,  and  on  that  ground  alone  the  prohibition  must  be 
granted.  It  may  be  there  was  more  evidence  than  appears  on 
the  face  of  the  depositions,  but  it  would  be  dangerous  to  allow 
depositions  to  be  supplemented  by  affidavits  of  what  took  place 
before  magistrates.  The  depositions  alone  must  be  our  source  of 
knowledge  of  what  took  place  before  the  magistrates.  With 
regard  to  the  subject  of  a  claim  of  right,  we  are  not  satisfied  that 
the  section  under  which  ihe  information  was  laid  is  a  penal  one. 
Moreover,  satisfied  or  not,  there  being  nothing  in  the  depositions 
to  show  that  this  claim  was  tendered,"  the  question  raised  is  utterly 
immaterial,  except  so  far  as  regards  costs.  I  think  this  rule 
should  be  made  absolute,  but  without  costs. 

LuTWYCHE  J.  concurred. 

Solicitors  for  Applicant :    Wilson  and  Bunion. 

Solicitor  for  Respondent :   Doyle,  agent  for  Hamilton. 


Goldsmith  v. 

BOGHE. 


Cockle  C.J. 


Lutwyehe  J 


Lutwyche  J. 


54  QUEENSLAND   JUSTICE   OF  THE    PEACE. 

[In  Banco]. 

R.  V.  CASTLES  &  GRIFFITHS. 
[2  S.C.R.  147.— Note.— 29  Vic,  No.  6,  is  repealed,  see  now  ss.  398  (111.)  and  402  of 
Criminal  Code.    As  to  joinder  of  counts,  see  now  ss.  567,  568  ol  Criminal 
Code.    As  to  quashing  indictment  see  now  ss.  571  and  596  ol  Criminal  Code.} 

1871.  Criminal  Law — Information— Joinder  of  several  felonies  in  different 

12th  May.  counts    against    two    'prisoners    in   one   information — Larceny 

CockUG.J.  Act  of  1865  (29  Fie,  No.  6),  ss.  10,  11. 

In  an  infornuition  against  two  prisoners  a,  coiint  for  feloniously  stealing  a  cow 
had  been  joined  with  counts  for  feloniously  killing  a  cow,  with  intent  to  steal 
the  carcase  and  hide,  and  one  prisoner  was  found  guilty  on  the  second  count,  but 
not  guilty  on  the  first  and  third,  and  the  other  prisoner  was  found  guilty  on  the 
first,  but  not  guilty  on  the  second  and  third. 

The  conviction  was  aflGrmed,  the  right  being  reserved  for  the  prisoners  to  sue 
out  a  writ  of  error. 

An  application  should  have  been  made  to  quash  the  information. 

Ceown  Case  Reseeved  by  the  Judge  of  the  MetropoUtan 
District  Court. 

James  Castles  and  Spencer  Griffiths  were  tried  on  22nd  May  at 
Warwick  on  an  information  containing  three  counts  (1)  that  on  the 
13th  May  last  they  did  feloniously  steal,  take,  and  drive  away  one 
cow,  the  property  of  Frank  Buttner  ;  (2)  that  they  did  feloniously 
kiU  the  cow  with  intent  to  steal  the  carcase  ;  (3)  that  they  did 
feloniously  kill  the  cow  with  intent  to  steal  the  hide.  The 
prisoners  pleaded  not  guilty,  and  were  defended  by  their  attorney. 
There  was  ample  evidence  to  go  to  the  jury  against  the  prisoner 
Griffiths  on  the  first,  second,  and  third  counts,  and  also  against 
Castles  on  the  second  and  third  counts  ;  the  judge  ruling  there 
was  no  evidence  against  him  on  the  first.  It  appeared  from 
the  evidence  that  the  cow  in  question  was  in  possession  of  the 
bailee  of  the  owner  on  11th  May,  and  it  was  found  in  the  stock- 
yard of  the  prisoner  early  in  the  morning  of  13th  ;  and  the  evidence 
adduced  by  the  prisoner  as  to  how  it  came  into  his  possession 
was  found  by  the  jury  to  be  false.  About  sunrise  on  the  morning 
of  the  13th  the  prisoners  killed  the  cow,  and  before  skinning 
and  cutting  up  the  carcase  they  were  interrupted  by  the  police. 
No  objection  was  taken  by  the  prisoner's  attorney  that  they 
were  charged  in  the  first  count  with  one  felony,  and  in  the  second 
and  third  with  another  felony  ;  nor  was  any  application  made 
that  the  Crown  Prosecutor  should  elect  to  proceed  on  one  or  other 
of  the  counts.     The  jury  first  brought  in  a  verdict  of  not  guilty 


CRIMINAL   EEPORTS,    1860-1907. 


55 


against  Castles  on  the  first  count,  and  guilty  on  the  second  and  R- «^  Castles  and 

lTR.Tli''F'TTHS 

third,  and  guilty  against  Griffiths  on  all  counts.     The  judge  then  

explained  to  the  jury  that  there  was  no  necessity  to  convict 
the  prisoners  on  more  than  one  count,  and  a  verdict  was  then 
returned  against  Castles  of  "  guilty  "  on  the  second,  and  "  not 
guilty  "  on  the  first  and  third  counts  ;  and  of  "  guilty  "  against 
Grifiiths  on  the  first,  and  "  not  guilty  "  on  the  second  and  thifd 
counts.  No  motion  was  made  in  arrest  of  judgment,  and  each 
prisoner  was  sentenced  to  three  years'  penal  servitude.  Before 
passing  sentence,  the  Judge  entertained  some  doubt,  whether 
from  the  evidence  adduced,  the  count  for  feloniously  steaUng 
should  have  been  joined  with  those  for  feloniously  kilfing  with 
intent  to  steal  the  carcase  and  hide.  He  also  entertained  a 
doubt,  whether  on  the  information,  one  prisoner  could  be  found 
guilty  on  the  first  count,  and  not  guilty  on  the  second  and  third, 
and  the  other  could  be  found  guilty  on  the  second,  and  not 
guilty  on  the  first  and  third.  The  prisoners  were  undergoing 
sentence,  and  the  opinion  of  the  Court  was  requested  on  the 
questions  (1)  whether  on  the  information  the  prisoners,  or  either 
of  them,  ought  to  have  been  convicted,  and  (2)  whether  the 
record  was  correct. 

Bramston  A.G.,  for  the  Crown,  in  support  of  the  conviction 
it  was  competent  to  join  several  descriptions  of  offences  in  the 
same  indictment,  and  therefore  on  the  first  point  the  conviction 
must  be  maintained.  R.  v.  Heywood,  33  L.J.  (M.C.)  133  ;  R. 
V.  Moah,  Dears  626  ;  R.  v.  Trueman,  8  C.  &  P.  727  ;  R.  v.  Mitchell, 
3  Cox  C.C.  93.  [LuTWYCHE  J.  mentioned  R.  v.  Hinley,  2  M.  &  R. 
524  ;  R.  V.  Kingston,  8  East  41  ;  9  R.R.  373  ;  Young  v.  R.,  3  T.R. 
98,  106.]  On  the  second  point  the  counts  being  joined,  and  the 
transactions  which  created  the  offence  charged  against  each 
prisoner  being  the  same,  it  was  competent  to  find  them  guilty 
on  different  counts.  R.  v.  Butterworth,  R.  &  R.  520  ;  R.  v. 
Hempstead,  R.  &  R.  344  ;  R.  v.  Pulham,  9  C.  &  P.  280  ;  R.  v. 
Hayes,  2  M.  &  R.  155  ;   2  Hawkins,  P.C.  622. 

Cockle  C.J.  :   An  appUcation  should  have  been  made  to  quash       cookle  C  J, 
the  information.     The  conviction  must  be  affirmed.     R.  v.  Hayes, 
2  M.  &  R.  155.     We  reserve  the  right  to  the  prisoners  to  sue  out  a 
writ  of  error,  if  they  think  fit. 

LuTWYCHE  J.  concurred,  and  referred  to  R.  v.  Wheeler,  7  C.  &       mtwyohe  J. 

P.  170. 

Conviction  affirmed. 


56  QUEENSLAND   JUSTICE    OP  THE    PEACE. 

[In  Banco.] 
R.  V.  LEVY. 

[2  S.C.R.  166.— Note.— 29  Vic,  No.  6,  s.  3,  is  repealed,  see  now  ss.  391,  398  of 

Criminal  Code.] 

1871.  Larceny    as    a    bailee — Bailment — ValvMble    security — Promissory 

18th,  19th  Dec.  ^^^g — Passing  of   property — Larceny   Act  of   1865    (29    Vic, 

Cockle  C.J.  No.  6),  s.  3. 

Lutioyche  J. 

L.  was  convicted  of   larceny    as    a    bailee    of  a  promissory-note  under    the 

following  circumstances  :  L.  called  at  K.'s  store  and  asked  for  an  order  for  goods,, 
and  K.  gave  him  an  order  for  goods  to  the  value  of  £54  lOs.  ;  L.  asked  then  K.  for 
a  promissory-note,  as  he  was  going  to  Brisbane  that  evening ;  he  said  he  put  in  . 
the  goods  much  cheaper  than  before,  and  he  wanted  the  note.  K.  said,  "  If  I 
give  you  this  promissory-note  will  you  forward  the  goods  at  once  ?  "  L.  replied 
"I  wiU."  K.  then  said, -"  Should  you  not  do  so  I  request  you  to  forward  the 
promissory-note  at  once."  L.  said,  "  Yes  ;  "  then  took  out  of  a  book  a  blank  form 
of  promissory-note,  and  wrote  on  it  and  handed  it  to  K.  to  sign.  K.  signed  it  and 
gave  it  to  L. ;  the  note  was  not  stamped  when  handed  to  K.,  and  there  waa  no 
evidence  to  show  at  what  time  it  was  stamped.  K.  swore  that  L.'s  name  was  in 
the  note  when  he  signed  it ;  the  goods  were  never  forwarded  by  L.,  and  subse- 
quently the  note  was  passed  at  L.'s  request  to  his  credit  by  B.,  to  whom  prisoner 
had  been  previously  indebted.  K.  wrote  to  L.  for  the  return  of  the  note,  and 
received  one  somewhat  similar  from  L. 

Hdd,  that  there  was  no  reasonable  evidence  to  go  to  the  jury  in  support  of 
the  information,  that  there  was  no  property  in  K.  of  the  promissory-note,  and 
that  there  was  no  bailment. 

Crown  Case  Reserved  by  Lutwyche  J. 

The  prisoner,  Lawrence  Levy,  was  tried  before  Mr.  Justice 
Lutwyche  on  5th  December  on  a  charge  of  larceny  as  a  bailee,  and 
the  information  alleged  that  he  being  the  bailee  of  a  certain 
valuable  security — namely,  a  promissory-note  for  £54  lOs.,  and 
one  piece  of  paper,  the  property  of  D.  T.  Keogh,  of  Ipswich, 
unlawfully  and  fraudulently  converted  it  to  his  own  use.  The 
second  count  charged  him  with  larceny  of  the  said  note.  It 
appeared  from  the  evidence  that  the  prisoner,  on  the  28th  June, 
called  at  Keogh's  store,  and  asked  him  for  an  order  for  goods. 
Keogh  gave  him  an  order  accordingly  for  goods  to  the  value  of 
£54  10s.,  and  prisoner  then  asked  him  for  a  promissory-note, 
as  he  was  going  to  Brisbane  by  the  coach  that  evening.  He  said 
he  had  put  in  the  goods  much  cheaper  than  before,  and  that 
he  wanted  the  note.  Keogh  said  he  would  do  so,  and  the  follow- 
ing conversation  then  took  place  :   Keogh  said  "  If  I  give  you  this 


CBIMINAL  EEPOETS,   1860-1907.  57 

promissory-note,  will  you  forward  the  goods  at  once  ?  "  Prisoner  ^  '^- 1'^^*- 
replied,  "  I  will."  Keogh  then  said,  "  Should  you  not  do  so  I  re- 
quest you  to  forward  the  promissory-note  at  once."  The  prisoner 
said  "  Yes,"  and  then  took  out  of  a  book  a  blank  form  of  promis- 
sory-note, and  wrote  on  it  and  handed  it  to  Keogh  to  sign.  Keogh 
signed  it,  and  gave  it  to  the  prisoner.  The  note  was  not  stamped 
when  handed  to  Keogh  by  the  prisoner,  and  there  was  no  evidence 
to  show  at  what  time  it  was  stamped.  Keogh  when  asked  if 
the  name  "  Laurence  Levy  "  was  put  in  the  note  by  the  prisoner 
when  he  was  in  his  (Keogh's)  shop,  said  he  could  almost  swear  it 
was  in  the  note  when  he  signed  it,  and  on  re-examination  said 
he  had  not  the  slightest  doubt  about  it.  The  goods  for  which  the 
promissory-note  was  given  were  never  forwarded  by  prisoner, 
and  on  the  3rd  July  the  note  was  passed  at  his  request  to  his 
credit  by  Mr.  E.  Barnett,  to  whom  the  prisoner  had  been  previ- 
ously indebted.  On  the  17th  August  Keogh  wrote  to  prisoner  to 
send  him  the  note  or  the  goods,  and  on  the  18th  the  prisoner 
wrote  to  Keogh  in  reply,  stating  that  he  had  done  as  requested. 
Enclosed  in  the  prisoner's  letter  was  a  piece  of  paper,  purporting 
to  be  a  cancelled  promissory-note,  similar  in  all  respects  to  that 
signed  by  Keogh,  except  that  it  was  unstamped,  that  the  date 
when  due  was  wanting,  that  part  where  the  signature  should  have 
been  was  torn  oJEE,  and  that  it  bore  only  one  endorsement, which 
was  cancelled.  The  promissory-note  signed  by  Keogh  was 
dishonoured  when  it  arrived  at  maturity.  At  the  close  of  the 
case  counsel  for  prisoner  submitted  that  there  was  no  case  to  go 
to  the  jiury,  and  urged  that  there  was  no  evidence  (1)  of  a  bailment 
by  Keogh  to  prisoner  ;  (2)  of  the  note  being  available  security 
within  the  meaning  of  the  Act,  29  Vic,  No.  6,  s.  3  ;  (3)  of  Keogh's 
property  in  the  promissory-note  ;  (4)  of  the  existence  of  any  piece 
of  paper  as  such  after  Keogh  had  signed  the  promissory-note  ; 
(5)  of  the  completeness  of  the  instrument  as  a  promissory-note 
when  it  left  the  hands  of  Keogh ;  and  (6)  of  the  value  of  the  piece 
of  paper  charged  to  have  been  stolen  by  the  prisoner  as  a  bailee. 
The  case  was  left  to  the  jury,  who  found  the  prisoner  guilty  of 
larceny  as  a  bailee,  and  he  was  sentenced  to  imprisonment  with 
hard  labour  for  twelve  months  in  Brisbane  Gaol.  The  question 
reserved  was — was  there  any  evidence  to  go  to  the  jury  in  sup- 
port of  the  conviction  upon  the  information  laid  against  the 
prisoner  ?  If  the  Court  should  be  of  the  opinion  that  there  was 
such  evidence,  then  the  conviction  was  to  stand  affirmed  ;  but 
if  there  was  not  such  evidence,  then  the  conviction  was  to  be 
avoided,  and  the  proper  entry  made  on  the  record  accordingly. 


68  QUEENSLAND  JUSTICE   OP  THE    PEACE. 

R.  v.  Levy  Blake  Q.C.  and  Hely,  for  the  prisoner  :    There  is  no  evidence 

of  bailment ;  the  whole  transaction  does  not  constitute  that  which 
the  law  calls  a  bailment.  Whether  there  was  fraud  or  not  on 
the  part  of  the  prisoner  is  not  the  question,  but  whether  there 
was  larceny  as  a  bailee.  To  constitute  a  bailment  there  must  be  a 
deUvery  of  something  of  value  to  a  bailee,  either  to  be  kept  or 
to  have  that  value  increased  by  something  to  be  done  by  the 
bailee,  and,  at  a  specified  time,  afterwards  to  re-dehver  the 
thing  in  its  original  state,  or  with  some  improvement  on  the  thing 
into  which  it  had  been  converted  to  the  bailor  (Coggs  v.  Bernard, 
1  Smith's  L.C.  177),  and  to  constitute  a  bailment  of  the  fifth  kind, 
there  must  be  a  deUvery  to  carry  or  otherwise  manage  for  a 
reward  to  be  paid  to  the  bailee.  Nothing  of  any  value  passed 
from  Keogh  to  the  prisoner.  This  is  not  a  case  where  the  bill 
was  delivered  for  discount,  it  was  delivered  for  payment.  It 
was  not  a  bailment,  because  the  thing  delivered  by  Keogh  to  the 
prisoner  was  not  to  be  re-delivered,  nor  was  that  into  which 
it  was  to  be  converted,  to  be  re-delivered  ;  see  Cockburn  C.J. 
{R.  V.  Hassall,  L.  &  C.  62).  Here  the  prisoner  was  not  bound  to 
return  the  specific  coins  he  received.  Does  not  the  word,  bailee, 
imply  that  the  thing  received  is  to  be  specifically  returned  ? 
A  bailee  must  return  either  the  article  received,  or  something 
into  which  it  has  been  converted  in  accordance  with  the  terms 
of  the  bailment.  What  the  prisoner  had  was  never  the  property 
of  Keogh  [R.  V.  Phipoe,  2  Leach  CO.  673,  at  page  679).  "  It  is 
essential  to  larceny  that  the  property  charged  to  have  been 
stolen  should  be  of  some  value  ;  that  the  note  in  the  present 
case  did  not,  on  the  face  of  it,  import  either  a  general  or  a  special 
property  in  the  prosecutor  ;  and  that  it  was  so  far  from  being 
of  any  the  least  value  to  him,  that  he  had  not  even  the  property 
of  the  paper  on  which  it  was  written ;  for  it  appeared  that  both 
the  paper  and  the  ink  were  the  property  of  Mrs.  Phipoe,  and  the 
dehvery  of  it  by  her  to  him  could  not,  under  the  circumstances  of 
the  case,  be  considered  as  vesting  it  in  him."  He  had  not  to 
return  the  identical  thing  to  Keogh,  and  if  it  was  worthless  it 
was  never  a  valuable  security.  (29  Vic,  No.  6,  s.  3).  It  was 
merely  Keogh's  acknowledgement  of  indebtedness  (Rex  v.  Hart, 
6  C.  &  P.  106).  The  note  was  primarily  prepayment  for  goods 
which  the  prisoner  was  to  send  to  Keogh,  and  if  he  did  not  send 
the  goods,  he  was  to  get  the  note  back,  and  as  he  did  not  send  the 
goods  it  is  a  case  of  fraud,  or  at  least  a  breach  of  contract.  The 
note  was  not  a  valuable  security  until  it  passed  into  the  hands 


CRIMINAL  EEPORTS,   1860-1907.  59 

of  Barnett.  If  the  prisoner  had  not  discounted  it  before  it  becatae  ^  v^^vy. 
due,  it  would  have  been  worthless  ;  because  if  he  sued  Keogh,  a 
total  failure  of  consideration  could  be  pleaded.  The  position 
of  the  prisoner  was  more  that  of  a  trustee  of  the  note  than  any- 
thing else,  and  certainly  he  was  not  a  bailee.  He  entered  into 
a  collateral  contract,  and  cases  which  tend  to  convert  the  ground 
of  civil  action  into  a  criminal  offence  are  to  be  followed  with 
caution  {Bex  v.  Shea,  7  Cox  C.C.  147).  It  was  a  contract  to 
deliver,  not  to  re-deUver.  Another  point  is  this,  being  a  chose-in- 
aotion  it  is  not  the  subject  of  larceny,  Beg  v.  Watts,  Dea.  326  ; 
B.  V.  Morrison,  8  Cox  C.C.  194.  The  conversation  between  the 
parties  amounted  to  an  agreement  on  the  part  of  the  prisoner 
to  negotiate  the  note,  and  however  the  transaction  is  looked  at 
it  is  impossible  to  make  it  appear  as  a  bailment.  The  note  or 
chattel  was  never  the  property  of  Keogh  ;  he  never  had  it  in  his 
possession  except  to  write  upon  it ;  and  as  no  property  passed 
from  Keogh  to  the  prisoner  there  could  be  no  bailment.  All 
that  could  have  passed  was  a  future  right  to  possession  of  the 
note.  No  property  passed  from  Keogh  ;  the  paper  was  not  a 
valuable  security  {B.  v.  Lowrie,  L.E..  1,  C.C.R.  61)  ;  and  there 
was  no  bailment. 

Bramston  A.O.,  for  Crown. 

The  Couet  suggested  that  counsel  for  the  Crown  should  confine 
himself  to  the  question  of  property,  as  on  that  the  whole  case 
would  turn. 

Bramston  A.G.  :  The  note  was  the  property  of  Keogh  as  soon 
as  it  was  handed  to  him  by  the  prisoner,  Evans  v.  Kymer  (1  B. 
&  Ad.  528).  When  prisoner  handed  over  the  note  he  parted 
with  all  the  property  in  the  note — deHvery  on  request  is  quite 
a  sufficient  consideration  for  transfer  of  the  property.  If  it  was 
not  in  his  possession  it  never  was  a  complete  note,  he  never 
dehvered.  If  it  was  never  in  Keogh's  possession  then  he  could 
not  have  signed  it.  He  had  a  right  to  demand  the  note  again, 
Treuttel  v.  Barandon  (8  Taunt.  100)  ;  B.  v.  Smith,  21  L.J.  (M.C.) 
111).  Keogh  could  have  refused  to  part  with  it  after  he  had 
signed  it,  and  when  prisoner  handed  the  complete  instrument 
to  Keogh,  he  parted  with  the  property.  The  document  was 
received  by  the  prisoner  on  the  express  condition  that  it  was 
to  be  returned  to  him  ;  and  that  is  sufficient  to  constitute  a 
bailment.     There  was  no  necessity  to  show  actual  value,  but  the 


€0 


QUEENSLAND   JUSTICE    OF  THE    PEACE. 


R.  V.  Levy. 


Cockle  C.J. 
Lutwyche  J. 


moment  the  note  passed  from  the  prisoner  it  became  a  valuable 
security  for  the  amount  stated.  The  cases  quoted  by  the  other 
side  do  not  apply.  Keogh  could  have  recovered  on  an  action  in 
trover,  and  if  he  had  sufficient  property  in  the  document  to  sustain 
such  an  action,  it  cannot  now  be  set  up  that  he  had  no  property 
in  it.  The  property  was  in  Keogh,  it  continued  his  property, 
and  there  was  a  bailment.  In  fact,  the  jury  found  that  the 
bailment  was  complete,  and  therefore  the  conviction  should 
stand  affirmed. 

Blake  Q.C.,  in  reply,  was  not  heard. 

The  Coukt  held  that  there  was  no  reasonable  evidence  to  go 
to  the  jury  in  support  of  the  information.  They  were  of  the 
opinion  that  there  was  no  property  in  Keogh  of  the  promissory 
note,  and  that  there  was  no  bailment,  and  the  conviction  could 
not  therefore  be  sustained. 

Conviction  avoided. 

Solicitors  for  prisoner  :    Macpherson  &  Lyons. 


1871 

81%  November, 

8th,  12th,  aSnd 

December. 

Cockle  C  J. 
Lutwyche  J. 


[In  Banco]. 

In  re  COURT. 

[2  S.C.R.  171.— Note.— See  now  s.  20  ol  Criminal  Code.] 

Criminal   Law — Felon — Escape — Re-arrest     after      expiration    of 
period  of  sentence — Discharge  on  habeas  corpus. 

A  felon  sentenced  to  five  years'  imprisonment  escaped  shortly  afterwards, 
and  after  the  expiration  of  the  period  of  sentence  was  re-arrested,  and  committed 
to  custody  on  a  warrant  of  a  magistrate. 

Held  on  »  return  to  »  writ  of  habeas  corpus,  that  he  was  illegally  in  custody, 
but  might  be  prosecuted  for  escaping.     The  prisoner  was  discharged. 

Rule  nisi  calling  on  the  Sheriff  to  shew  cause  why  a  writ  of 
habeas  corpus  should  not  issue,  commanding  him  to  have  the 
prisoner,  Charles  Court,  brought  before  the  Court.  The  prisoner 
was  sentenced  on  14:th  September,  1865,  to  two  concurrent 
sentences  of  five  years'  imprisonment  with  hard  labour,  for 
horse  stealing.  He  escaped  from  St.  Helena  on  16th  August,  1866, 
and  was  again  lodged  in  custody  on  4th  August,  1871,  under  a 
warrant  of  a  magistrate,  after  the  expiration  of  his  term  of  im- 
prisonment. 


CRIMINAL   REPORTS,   1860-1907. 


61 


Bramston  A.G.,  for  the  Sheriff.  A  man  cannot  take  advantage 
of  his  own  wrong,  the  prisoner  should  not  therefore  be  allowed  to 
escape  punishment  of  the  felony  of  which  he  was  convicted  because 
he  has  evaded  it.  He  should  not  be  punished  for  the  offence  of 
escaping  which  is  only  a  misdemeanour,  instead  of  the  felony. 
The  rule  should  be  discharged.  1  Russell,  581,  586;  citing  2 
Hawkins,  P.O.,  c.  19,  s.  12  ;  Wilkinson's  Editn.  (1866)  of  Plunkett, 
p.  281. 

Blake  Q.C.  and  Griffith,  for  the  prisoner.  The  term  of  sentence 
has  expired.  The  sentence  commenced  from  the  date  of  con- 
viction. Coke,  52  a  Pt.  3,  Vol.  III.,  145.  The  proper  course 
would  be  to  indict  the  prisoner  for  escaping,  and  all  the  legal 
questions  could  then  be  decided.  When  the  sentence  com- 
menced to  run  it  was  similar  to  the  running  of  the  Statute  of 
Limitations,  which  could  not  be  stopped,  and  at  the  expiration 
of  the  period  from  the  date  of  the  conviction  the  sentence  expired, 
and  could  not  be  prolonged.  The  only  means  by  which  a  cumu- 
lative punishment  can  be  carried  is  by  an  indictment  for  an 
escape.  Bacon's  Abridgt,  133  ;  2  Hawkins  P.O.,  c.  18,  s.  5  ; 
4  Vic,  No.  10  (1  Bring,  588)  ;   Easton's  case,  12  Ad.  &  El.  645. 

Griffith  followed.  The  prisoner  is  now  detained  because  he 
has  escaped.  A  man's  liabiUty  to  punishment  can  only  be 
ascertained  by  a  record.     Groome  v.  Forrester,  5  M.  &  S.  316. 

C.A.V. 

22nd  December,  1871. 

The  Cottbt  referred  to  3  Wm.  IV.,  No.  3,  s.  20  ;  4  Vic,  No.  10, 
s.  1  ;  18  Vic,  No.  7,  s.  2  ;  11  &  12  Vic,  c.  42,  s.  23  ;  Form  T.  1, 
(Bring,  582,  588,  590,  779,  793)  ;  Easton's  Case  (ante),  and  ordered 
the  rule  to  be  made  absolute,  the  writ  returnable  at  a  later  hour 
of  the  same  day. 

The  prisoner  was  then  produced,  and  the  return  and  writ  read. 

Griffith  moved  for  the  discharge  of  the  prisoner. 

Bramston  A.G.  did  not  claim  to  detain  him  as  on  a  warrant  of 
commitment,  two  sessions  of  oyer  and  terminer  having  passed,  but 
claimed  to  detain  him  as  of  his  original  custody. 

Per  Curiam.  The  prisoner  cannot  be  detained  upon  the 
ground  that  he  escaped  before  the  expiration  of  his  sentence,  and 
which  has  since  expired.  He  might  be  prosecuted  for  escaping  if 
such  a  course  is  considered  necessary. 

Prisoner  discharged. 

Solicitor  for  prisoner  :    Bunton. 


In  re  Court. 


Cookie  C.J. 
Lutwyohe  J. 


62 


QUEENSLAND   JUSTICE   OF  THE    PEACE. 


1871. 
18th  December. 

Cockle  C.J. 
Lutwyche  J. 


Cookie  C.J. 


[In  Banco.] 

REGINA  V.  PENN. 

[2  S.C.R.  177.] 

Criminal  Law — Evidence — Deposition  of  absent  witness — Evidence 
and  Discovery  Act  of  1867  (31   Vic,  No.  13),  s.  67.* 

The  depositions  taken  before  justices  of  a  medical  witness,  who  was  absent 
from  the  trial  of  a  prisoner  on  account  of  having  to  go  to  Sydney  for  the  benefit 
of  his  health,  was  held  admissible  as  evidence. 

Ji.y.  Wicker  (18  Jur.  252)  followed. 

Ceown  Case  Reserved. 

This  was  a  special  case  reserved  from  the  last  sittings  of  the 
Supreme  Court  at  Maryborough,  when  the  prisoner  was  sentenced 
to  twenty  years'  penal  servitude  for  shooting  James  Cleary. 
The  point  reserved  was  whether  under  the  provisions  of  The 
Evidence  and  Discovery  Act  of  1867  the  depositions  of  one  of  the 
witnesses.  Dr.  Brown,  should  be  admitted  as  evidence  ;  Brown, 
who  was  suffering  from  consumption,  having  previously  left  for 
Sydney  for  the  benefit  of  his  health. 

Bramston,  A.G.,  for  the  Crown.  The  question  is  whether  a 
witness,  who  leaves  town  for  the  benefit  of  his  health,  is  too  iU  to 
be  able  to  travel ;  if  Dr.  Brown  had  resided  anywhere  else  the 
depositions  must  have  been  received.  Section  67  of  the  Act  pro- 
vides for  cases  where  the  "  witness  shall  be  so  iU  as  not  to  be  able 
to  travel,"  which  means,  so  ill  as  not  to  be  able  reasonably  to 
attend.  Archbold,  Edn.,  1867,  p.  230  ;  B.  v.  Biley  (3  C.  &  K. 
116)  ;  B.  V.  Coclcburn,  Dears  &  B.,  203,  26  L.J.  (M.C.),  139; 
Boscoe,  7th  Edn.,  66  ;  B.  v.  Wicker,  18  Jur.,  252  ;   Taylor,  p.  406. 

No  one  appeared  on  behalf  of  the  prisoner. 


Cockle  C.J. 
be  affirmed. 


I  am  of  the  opinion  that  the  conviction  should 


Lutwyche  J.  LuTWYCHE  J.  :   I  am  of  the  same  opinion  on  the  authority  of 

B.  V.   Wicker. 

Conviction  affirmed. 


*  Compare  Justices  Act  (50  Vic,  No.  17),  s.  111. 


CRIMINAL   REPORTS,   1860-1907. 


63 


[In   Banco.] 
R.  V.  COATH. 

[2  S.C.R.  178.— Note.— See  now  ss.  354   and  355  of  Criminal  Code  and  Pacific 
Islanders  Protection  Act,  1872  (35  and  36  Vic,  No.  19),  s.  9.] 

Criminal  Law — Kidnapping — Slavery. 

The  ship  Jason,  from  Queensland,  visited  certain  islands  in  the  South  Seas, 
inhabitants  from  which  came  out  to  trade,  and  were  forcibly  seized,  detained, 
and  brought  to  Maryborough,  where  they  were  set  free. 

Hdd  (afBrming  Ltjtwyche  J.)  that  as  the  islanders  had  been  detained  and 
brought  to  Queensland  in  a  British  ship  against  their  wills,  the  offence  of  kid- 
napping had  taken  place,  and  the  Court  had  jurisdiction  to  try  the  persons  charged. 

The  history  of  slavery  reviewed. 

Cbowk  Case  Reserved  by  Lutwyche  J.  on  the  trial  of 
the  prisoner  at  the  last  criminal  sittings  of  the  Supreme  Court 
at  Brisbane. 

The  prisoner  was  charged  in  the  first  count  of  the  indictment 
with  the  abduction  and  kidnapping  of  certain  South  Sea  Islanders 
in  the  month  of  January,  1871  ;    the  second  count  charged  him 
with  an  assault  upon  the  said  islanders  ;   the  third  with  abduction 
and  kidnapping  of  nine  other  islanders  in  February,  1871  ;    and 
the  fourth  with  an  assault  upon  the  same  islanders.     He  was 
found  guilty  on  the  third  count,  and  not  guilty  on  the  other 
counts,  and  was  sentenced  to  five  years'  imprisonment  in  Birisbane 
Gaol,  and  to  pay  a  penalty  of  £50,  and  to  remain  imprisoned 
until  such  fine  be  paid.     In  summing  up  the  Judge  directed  the 
jury  that  if  they  were  satisfied  that  at  the  time  of  the  commission 
of  the  alleged  offence  charged  in  the  third  count,  the  Jason  was 
a  British  ship,  and  was  sailing  on  the  sea,  she  was  sailing  on  the 
high   seas,     and    that  the   offence  was  triable  here.       He   also 
directed  that  if  they  were  satisfied  that  the  nine  islanders,  or 
any  of  them,  were  brought  on  board  or  detained  there  against 
their  wiU,  and  carried  away  to  another  place,  the  charge  of  kid- 
napping would  be  proved.     Mr.  Lilley,  the  defendant's  counsel, 
objected  to  the  direction  on  both  of  these  points,  and  the  following 
questions  were  accordingly  reserved  for  the  decision  of  the  Court : 
(1)  "  Was  I  right  in  directing  the  jury  that  if  the  Jason  was  a 
British  ship,  and  on  the  sea,  she  was  saiUng  on  the  high  seas, 
and  that  the  subject  matter  of  the  inquiry  was  within  the  juris- 
diction  of   the   Court  ?  "     (2)  "  Was   I   right  in   directing   the 
jury  that  if  they  were  satisfied  that  the  nine  islanders,  or  any 


1871. 
18th  December. 

Cockle  G.-T. 
Lutwyche  J. 


64  QUEENSLAND  JUSTICE   OF  THE    PEACE. 

K.  V.  CoATH.  of  them,  were  brought  on  board  the  Jason,  or  detained  there 
against  their  will,  and  carried  away  to  another  place,  the  charge 
of  kidnapping  would  be  made  out  ?  " 

Lilley  Q.C.  and  Blake  Q.C.,  for  the  prisoner. 

Bramston  A.G.  for  the  Crown. 

Lilley  Q.C.  I  ask  that  the  case  as  stated  be  amended  by  stating 
that  the  islanders  when  they  were  put  on  board  the  Jason  were 
treated  in  the  same  way  as  the  other  islanders  who  were  on  board, 
and  that  they  were  landed  free  at  Maryborough. 

The  Cottet.  We  refuse  to  allow  the  amendment,  but  consent 
to  the  case  being  argued  as  if  the  facts  referred  to  were  set  out 
in  the  case. 

Bramston  A.G.  mentioned  R.  v.  Anderson,  L.R.  1,  C.C.R.  161. 

Lilley  Q.C.  I  do  not  think  that  the  point  raised  by  the  first 
question  is  tenable,  and  I  will  therefore  address  myself  to  the 
second  point.  The  question  might  be  shortly  stated  thus : 
"  Did  the  case  disclose  any  offence  known  to  the  English  law  ?  " 
I  contend  it  does  not,  even  admitting  the  facts  to  have  been 
proved.  The  question  substantially  is  :  "  What  is  the  offence 
of  kidnapping  as  known  to  the  English  law  ?  "  Can  it  be  com- 
mitted on  a  savage  or  barbarous  people  captured  and  brought 
within  the  protection  of  British  law,  and  landed  free  at  Mary- 
borough ?  (Stephens'  Comm.,  4th  Edn.,  163.)  There  is  no 
precedent  of  any  kind  for  this  conviction.  The  offence  of  kid- 
napping only  arises  where  persons  are  taken  from  under  the 
protection  of  the  law  of  England,  where  the  Sovereign  is  deprived 
of  a  subject,  or  where  there  is  a  concealment  of  a  person  in  any 
part  of  the  British  dominions,  so  as  to  deprive  the  person  of  the 
protection  of  the  laws  (B.  v.  Lord  Grey,  2  Shower,  218  ;  1  RusseU, 
962).  Under  the  Roman  law  it  was  no  offence  to  steal  or  capture 
barbarous  people,  and  the  offence  only  existed  where  a  freeman, 
his  wife,  or  child,  was  seized  or  held  as  a  slave.  It  is  no  offence 
to  go  to  islands  inhabited  by  a  savage  and  barbarous  people, 
and  to  bring  these  people  within  the  protection  of  the  Enghsh 
law.  The  only  quaHfication  which  exists  in  The  Slave  Acts  is  that 
such  persons  should  not  be  captured  or  seized  for  the  purposes 
of  being  used  as  slaves.  This  might  be  morally  wrong,  and  I 
am  not  going  to  defend  such  transactions  ;  but  the  question  is 
whether  there  is  an  offence  against  the  law.     Until  The  Slave 


CRIMINAL  REPORTS,    1860-1907.  65 

Acta  inferior  races  could  be  enslaved.  Slavery  is  not  piracy  ^-  '•  '^o*''^- 
by  the  law  of  nations,  but  on  the  contrary  it  is  lawful,  and  is 
only  made  piracy  by  the  municipal  laws  of  England.  The  piracy 
created  by  The  Slave  Acts  is  the  carrying  away  of  these  men  for 
the  purpose  of  using  them  as  slaves.  The  carrying  away  itself 
does  not  constitute  the  offence,  and  there  is  no  case  in  the  books  to 
show  that  the  seizure  of  barbarians  and  bringing  them  under 
the  protection  of  the  law  is  an  offence  against  the  law.  The  case 
of  Turbett  v.  Dassigney,  2  Shower,  221,  was  a  pure  case  of  kid- 
napping, because  the  person  was  taken  from  under  the  protection 
of  the  law.  The  moment  these  islanders  touched  the  deck  of 
an  EngUsh  vessel  they  were  free,  and  had  a  right  to  habeas  corpus. 
They  were  landed  at  Maryborough  and  were  allowed  to  land 
free  :  but  it  was  possible  that  if  they  had  been  landed  at  Fiji, 
which  was  not  in  the  British  dominions,  the  offence  of  kidnapping 
would  have  occured  ;  because  they  would  then  be  removed  from 
the  protection  of  the  law  which  they  were  entitled  to  by  virtue 
of  being  on  board  an  English  vessel.  It  is  contrary  to  fact  to  state 
that  slavery  was  unknown  to  England,  and  the  case  of  "  The 
Slave  Grace,"  2  Hagg,  94,  showed  that  residence  in  England  did 
not  make  a  slave  absolutely  free  ;  for,  on  returning  to  the  place 
from  whence  they  came,  they  again  became  slaves.  There  is 
clearly  no  kidnapping  in  this  case,  although  there  might  have 
been  false  imprisonment  for  a  short  time,  for  which  it  was  com- 
petent for  the  prisoner  to  have  been  punished.  I  therefore  submit 
the  direction  was  wrong,  and  the  conviction  must  be  set  aside. 
(The  following  authorities  were  also  cited  :  Dred  Scott  v.  Sanford, 
Howard's  19  U.S.R.,  393  ;  Somerset's  Case,  20  S.T.,  1-82  ;  The 
Penal  Code  of  New  York,  93,  Austin,  Vol.  II.,  242  ;  Santos  v. 
Illidge,  8  C.B.  (N.S.),  861  ;  Reg  v.  Serva,  1  Den.,  C.C.  104  ; 
The  Daphne,  10  S.C.R.  (L.)  N.S.W.,  37  ;    5  Geo.  IV.,  C.  113). 

Bramston  A.G.  The  direction  of  the  learned  Judge  was  per- 
fectly correct.  There  is  no  doubt  the  islanders  were  taken  on 
board  against  their  will,  and  conveyed  to  Maryborough  against 
their  will.  It  has  been  argued  that  this  does  not  constitute 
kidnapping,  because  it  is  not  possible  to  kidnap  a  person  of  a 
savage  race  if  he  is  brought  within  the  protection  of  the  law; 
but  the  effect  of  that  argument  is  that  a  man  is  brought  within 
the  protection  of  the  law,  and  still  that  protection  is  refused  by 
preventing  him  from  punishing  the  man  who  has  infringed  his 
personal  liberty.     Throughout  the  whole  of  the  argument  of  the 


66 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


B.  ■!;.  COATH. 


Ccckle  C.J. 


other  side  there  is  a  fallacy  which  undermines  the  whole.-  The 
learned  counsel  has  confused  the  efEect  of  the  law  with  the  law 
itself.  The  illegality  of  man-stealing  is  not  in  the  removal 
of  a  man  from  England,  but  in  the  violation  of  that  personal 
liberty  which  the  law  of  England  recognises  in  every  man  (Stephens 
Comm.,  140  ;  iJoscoe,  4th  Edn.,  568).  If  the  right  of  the  personal 
liberty  of  these  men  was  once  touched,  it  cannot  matter  whether 
they  were  brought  to  Queensland  or  elsewhere  ;  so  long  as  it 
was  against  their  will,  it  was  kidnapping.  With  regard  to  de- 
priving the  Sovereign  of  a  subject,  and  taking  a  person  from 
the  protection  of  the  law,  in  these  cases  we  have  a  condition  which 
necessarily  attests  to  the  illegal  acts  done,  but  it  does  not  show 
why  the  act  is  illegal.  It  tfan  never  be  held  to  be  the  law  of 
England  that  the  protection  of  the  law  is  meted  in  proportion 
to  the  civilization  of  a  people.  The  savage  has  as  much  right 
to  protection  under  this  law  as  the  most  highly  educated.  The 
rights  of  these  people  to  the  protection  of  the  law  attached  as 
soon  as  they  came  on  board  the  Jason  ;  they  were  then  entitled 
to  the  habeas  corpus,  *nd  their  right  to  demand  the  punishment 
of  those  who  had  seized  them  also  accrued.  These  people  can 
scarcely  be  called  free,  because  they  are  unable  to  return  from 
whence  they  came,  and  they  can  get  no  redress.  They  are  entitled 
to  enjoy  the  manners  and  customs  and  laws  of  their  own  country, 
and  their  forcible  removal  was  kidnapping.  The  Court  should 
remember  that  it  was  not  the  offence  committed  against  these 
people  alone  that  it  has  to  consider.  It  has  also  to  consider  the 
serious  injury  done  to  the  whole  of  the  public  by  this  outrage 
of  the  law.  It  is  the  public  peace  that  has  been  injured,  and  the 
public  has  a  right  to  demand  punishment  even  in  a  greater 
degree  than  the  persons  directly  injured.  In  Lor^  Grey's  case 
(supra)  it  was  the  relations  of  the  lady  whom  he  concealed, 
and  the  public,  who  demanded  that  he  should  be  punished,  and 
not  the  lady  herself.  I  therefore  maintain  that  the  conviction 
must  be  maintained. 

Lilley  Q.G.  replied. 

Cockle  C.J.  :  Although  I  cannot  say  I  was  convinced,  I  was 
very  much  impressed,  by  the  very  learned  argument  which  Mr. 
Lilley  advanced,  and  which  he,  I  crave  leave  to  say,  pressed 
properly  on  the  Court,  because  the  Court  is  never  more  in  danger 
of  going  wrong  than  when  it  is  disposed  to  be  likely  to  decide 
upon  emotional  grounds  ;    and  this  is  a  case  which  ought  to 


CRIMINAL  REPORTS,  1860-1907. 


67 


be  decided  solely  on  legal  grounds.  However  bad  the  law  may 
be,  the  Court  best  does  its  duty  by  rigidly  enforcing  it,  and 
thus  enabling  its  abuses  to  be  perceived,  and  leaving  it  to  the 
Legislature  to  correct  such  abuses,  and  therefore  as  far  as  I  am 
concerned,  I  do  not  think  any  emotional  ground  weighs  with  me 
at  all  in  dealing  with  this  matter  ;  but  I  do  give  considerable 
scope  to  the  argument  from  public  policy  which  has  been  adverted 
to  on  behalf  of  the  Crown.  We  have  no  right,  certainly  in  the 
exercise  of  an  arbitrary  discretion,  to  say  that  this  is  a  mis- 
demeanour which  the  law  does  not  say  is  a  misdemeanour.  We 
should  be  careful  not  to  do  that ;  but  we  may  fairly  say,  and 
not  for  any  rhetorical  reason  at  all,  what  would  be  the  conse- 
quences of  disturbing  this  conviction,  and  of  saying  that  the 
facts  which  constitute  the  evidence  on  which  the  conviction  was 
founded  do  not  constitute  a  misdemeanour  ?  We  may  fairly 
and  temperately  look  at  these  consequences.  It  would  appear 
that  men — whether  savage  or  civilized  perhaps  we  are  hardly 
able  to  say,  for  there  are  degrees  of  civilization  as  well  as  of 
everything  else,  but  at  any  rate  civilised  enough  to  traffic,  to 
come  in  the  way  of  the  ship  with  the  intention  of  trading,  as  was 
•evidenced  by  their  holding  up  a  pig — these  men  are,  after  a 
■display  of  force,  thrust  into  a  boat,  and  so  induced  to  go  on  board 
ship,  and  I  cannot  help  thinking  that  some  disregard  for  the 
lives  of  these  men  was  shown,  for  one  poor  fellow  jumped  over- 
board and  swam  as  he  no  doubt  thought  for  his  life.  He  was 
brought  back  in  an  exhausted  state,  and  if  he  had  not  been  taken 
on  board  it  is  quite  possible  he  might  have  been  drowned  before 
reaching  land.  Therefore,  taking  all  the  circumstances,  we  say 
here  is  a  display  of  something  like  treachery;  a  seizing  of  persons 
who  came  to  trade,  and  a  disregard  shown  to  life  by  attending 
rather  to  the  capture  of  those  who  were  going  on  board  than  to 
the  poor  fellow  who  ventured  on  a  long  swim  for  his  life.  Then 
there  is  the  example  shown  by  these  savages — one,  an  old  man, 
weeping  perhaps  for  the  thoughts  of  those  whom  he  had  on  shore, 
and  who  were  weeping  for  him,  and  not  only  that,  but  after  he 
and  the  others  were  thrust  down  the  hold,  their  yams  and  pigs 
were  appropriated,  and  their  canoe  used  for  firewood.  I  do 
not  use  this  for  any  rhetorical  effect.  It  is  obvious  that  any 
Court  would,  if  it  could,  avoid  it ;  but  we  must  consider  whether 
one  subject  of  Her  Majesty  is  at  liberty  to  fit  out  a  vessel  to  sail 
amongst  these  apparently  savage  and  guideless  islanders,  and 
seize  them  and  appropriate  their  property  a   appears  to  have  been 


B.  V.  COATH. 

Cookie  C.J. 


68  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

R.  V.  CoATH.  (jone  in  this  case.  It  is  the  more  necessary  that  we  should  fix 
Cpclile  C.J.  our  attention  on  this,  because  it  should  be  noticed  that  with  the 
improved  manners  and  greater  knowledge  of  succeeding  ages, 
the  maxims  of  ptevious  ages  are  deviated  from.  We  see  with 
regard  to  the  English  law  of  evidence,  in  the  case  of  Omichund 
V.  Barker  (WiUes  538,  1  Atk.  21)  in  which  for  the  first  time,  it 
was  recognised  that  difference  of  religion  made  no  difference  so- 
far  as  giving  testimony  was  concerned — when  the  great  authority 
of  Lord  Coke  was  cited  to  show  that  the  evidence  of  a  Jew  ought 
not  to  be  admitted,  Chief  Justice  WiUes  said  that  the  reasons 
given,  though  coming  from  a  great  man,  were  not  such  as  he 
would  follow,  and  he  reversed,  or  rather  did  not  act  on  the 
decision  of  Lord  Coke,  but  took  the  more  correct  view — the  view 
recognised  by  succeeding  ages — that  such  narrow  reasons  did 
not  suffice  to  guide  the  law  of  evidence.  Therefore  we  may 
take  it  for  granted  that  with  the  increasing  culture  and  humanity,, 
and  toleration  of  ages,  some  of  the  old  maxims  should  be  moder- 
ated. Though  it  is  a  difficult  question  to  say  what  the  law 
may  have  been;  and  whether  there  is  any  authority  to  show 
that  the  common  law  would  have  regarded  this  as  anything^ 
but  a  grave  outrage,  we  know  that  a  great  many  deeds  of  violence 
were  perpetrated  in  America — take,  for  instance,  in  Spanish 
America,  where  such  deeds  were  done,  not  with  the  sanction  of 
the  Spanish  Government,  but  against  their  remonstrances,  and 
such  forces  as  the  then  King  could  bring  to  bear  were  found 
insufficient  to  remedy  the  abuses.  We  have  no  means  of  knowing 
how  far  this  institution  of  slavery  was  the  result  of  law  or  perpetu- 
ation by  custom  of  what  was  originally  a  cruel  abuse.  There  is- 
no  doubt,  let  it  arise  how  it  will,  that  colonial  slavery  does  appear 
to  have  been  recognised  in  the  English  Courts  ;  but  it  must  b& 
remembered  that  these  Courts  did  not  make  the  law,  but  that 
they  were  recognising  a  law  made  in  some  other  places  ;  and  I 
confess  that  when  it  comes  to  the  question  of  deciding  upon  the 
rights  of  a  man  to  his  liberty,  we  are  called  upon  to  narrowly 
scrutinise  the  old  doctrines.  Can  it  be  said  that  because  the 
Courts  recognised  slavery  in  the  British  dominions  that  they 
would  recognise  any  sort  of  slavery  ;  that  they  would  allow 
an  unfortunate  Frenchman  to  be  seized  by  any  person  who  chose 
to  call  him  his  slave  ;  and  if  such  a  person  asked  the  Court  to 
recognise  him  as  his  slave,  there  is  Uttle  doubt  that  the  Court 
would  refuse.  I  believe  that  any  Court  which  is  called  upon  to 
restrain  the  liberty  of  a  man  on  the  ground  of  being  a  slave  would 


CRIMINAL  REPORTS,   1860-1907.  69 

fully  examine  the  law  and  the  circumstances  to  ascertain  how  ^-  '"■  C"^™- 
far  the  ground  was  good.  Even  among  the  sterner  and  wealthier  Cockle  O.J. 
nations  of  antiquity  they  would  go  past  the  grounds  on  which  a 
man  was  alleged  to  be  a  slave  if  any  such  question  did  arise, 
and  it  would  have  to  be  shown  how  far  such  slavery  arose  ;  and, 
as  far  as  I  am  aware,  it  would  be  the  result  of  capture  in  war, 
or  for  some  crime  a  man  might  be  adjudged  to  slavery,  or  for 
debt ;  or  again,  in  some  of  those  parts  of  the  world  parental 
authority  might  empower  a  father  to  make  his  son  a  slave,  or 
there  might  be  a  contract  by  which  a  man  might  become  a  slave, 
or  a  custom — such,  as  I  hope,  sprung  up  in  the  colonies  in  spite 
of  the  Common  Law  of  England.  There  may  be  so  many  origins 
to  restraining  the  liberty  of  human  beings,  but  to  which  of  these 
sources  could  the  right  of  anyone  be  traced  to  sail  out  of  the  port 
of  this  colony,  and  act  as  these  persons  have  done  to  these  people 
of  the  Southern  Ocean  ?  The  state  of  the  law  might  have  escaped 
notice  at  home  ;  but  it  ought  not  to  escape  notice  here.  In 
England  these  matters  were  comparatively  unimportant.  The 
persons  whose  rights  were  torn  away  were  for  the  most  part  from 
the  coast  of  Africa,  a  long  hne  of  trade  across  portions  of  the 
ocean  through  which  no  man  went  except  engaged  in  the  nefarious 
and  cruel  traffic.  Ordinary  persons  at  home  were  not  likely  to 
be  depending  on  barbarous  treaties  or  the  like  ;  but  here  it  is  a 
very  different  question.  This  trade  is  carried  on  across  the  high- 
way through  which  much  of  the  commerce  of  these  parts  passes, 
and  along  which,  as  time  rolls  on,  probably  more  of  it  ■will  pass, 
and  in  which  are  islands  inhabited  by  tribes,  or  nations — or  call 
them  what  you  will — of  the  very  class  of  persons  brought  under 
our  notice  in  this  case  ;  and  if  once  amongst  these  nations  an 
opinion  should  get  abroad  that  our  law  proceeded  upon  principles 
so  inhuman  that  their  rights  could  be  violated  with  impunity  by 
any  man  who  may  choose  to  sally  forth  to  outrage  them,  I  say  that 
the  safety  of  commerce  itself  and  the  blessings  it  maintains — the 
safety  of  our  fellow-subjects  and  fellow-colonists — would  be 
endangered  ;  and  I  think  that  in  saying  this  I  am  only  drawing 
an  inference  that  the  Common  Law  itself  would  draw.  It  is  not 
on  any  narrow  or  technical  principle  that  I  base  my  opinion 
that  this  conviction  should  be  sustained.  I  think  that  the  cases 
decided  upon  the  point  of  slavery  are  valuable  and  important, 
but  still  in  this  particular  case  I  cannot  help  thinking  that  there 
is  a  strong  bias,  not,  I  hope,  affecting  the  Court  consciously, 
but  we  must  remember  that  different  views  may  be  entertained. 


70 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


B.  .;.  CoATH.      and  we  must  expect  to  find  different  views  prevailing    there. 

SooklTc.J.  Taking  a  general  view  of  the  case,  we  cannot  do  otherwise  than 
affirm  the  conviction.  I  had  some  doubts  as  to  the  meaning  of 
kidnapping,  but  Mr.  Justice  Lutwyche  threw  out  an  observation 
which  removed  the  difficulty.  Of  course,  we  decide  the  case 
simply  as  it  comes  before  us,  and  therefore  the  conviction  must 
stand. 

Lutwyehe  J.  LtTTWYCHE  J.  :    I  adhere  to  my  ruling  at  the  trial,  and  I  think 

the  direction  I  gave  the  jury  was  right.     I  told  them  that  if  they 
were  satisfied  that  these  nine  islanders,  or  any  of  them,  had  been 
taken  on  board  and  carried  away  to  another  place  against  their 
will,  the  charge  of  kidnapping  had  been  made  out.     One  form 
of  kidnapping  is  steaUng  and  carrying  away  a  man — not  any 
British  subject,  not  any  civilised  man,  but  any  human  being — 
man,  woman,  or  child,  and  if  so,  the  Common  Law  of  England 
will  undoubtedly  apply  to  the  offence  of  which  the  defendant 
has  been  found  guilty,  as  kidnapping.     It  has  been  said  that 
there  are  no  instances  of  a  case  of  this  kind  having  been  brought 
before  the  English  Courts,  and  the  cases  referred  to  are  principally 
cases  of  abduction,  which  is  a  taking  or  carrying  away,  sometimes 
with,  and  sometimes  against,  the  will  of  the  party,  and   in  these 
cases  the  concealment  of  the  person  was  the  main  ingredient  of 
the  charge.     But  I  think  that  although  no  instance  has  been 
cited,  and  perhaps  none  can  be  found,  in  which  a  charge  of  this 
kind  has  been  made  before  the  English  Courts,  yet  that  does  not 
affect  the  Common  Law,  which  says  to  the  subjects  of  England 
you   shall  not,   at  your  peril  of   fine   and  imprisonment,   take, 
steal,  or  carry  away  any  human  being.     And  yet  men  are  found 
to  sail  forth  from  a  port  of  this  colony,  and  seize  and  carry  away 
certain  persons  found  on  the  high  seas — they  are  called  islanders, 
and  whether  they  are  civilised  or  not  matters  not.     They  have 
a  right  to  Uberty,  which  is  inherent  in  all  human  beings,  although 
at  times  that  inherent  right  has  been  taken  away  by  force.     But 
we  have  nothing  to  do  with  that ;    we  must  assume  that  at  the 
time  these  men  were  taken  they  were  freemen,  and  that  being 
so  it  is  an  offence  on  the  high  seas  by  persons  subject  to  the  juris- 
diction of  the  British  Courts.     It  is  an  offence  against  the  public 
— a  serious  offence  against  the  public  in  this  case — for,  as  has 
been  pointed  out,  the  consequence  of  our  holding  that  this  was 
not  such  an  offence  as  contemplated  by  the  Common  Law,  would 
be  a  lasting  prejudice  to  the  position  of  England,  and  the  welfare 
of  the  colonies  which  form  her  empire.     If  we  were  to  hold  that 


CEIMINAL  EEPOETS,  1860-1907. 


71 


men  sailing  from  these  ports  were  able  to  make  these  excursions, 
and  treat  persons  whom  they  find  on  the  high  seas  in  the  same 
way  as  these  islanders,  we  would  have  a  league  of  nations  formed 
against  Great  Britain  and  her  dependencies  ;  and  it  would  be 
impossible,  if  we  were  to  maintain  such  a  principle,  to  uphold 
the  position  which  Great  Britain  at  this  time  happily  occupies. 
I  will  not  say  I  regret,  because  I  think  justice  has  been  done ; 
but  I  may  say  that  I  should  not  have  been  surprised  if  the  heavier 
charges  which  would  have  been  attended  by  graver  consequences, 
had  been  brought  against  the  defendant  in  this  case.  There 
can  be  no  doubt  upon  the  facts  set  out,  that  robbery  and  depre- 
dation on  the  high  seas  were  committed,  and  robbery  and  depre- 
dation amount  to  piracy.  The  defendant  may,  therefore,  think 
himself  fortunate  that  he  was  tried  on  the  lighter  charge,  and 
sentenced  to  only  five  years'  imprisonment  and  a  fine  of  £50, 
instead  of  being  tried  for  the  graver  offence,  for  which  he  might 
have  been  sentenced  to  penal  servitude  for  Ufe.  I  have  nothing 
further  to  add.  I  have  only  to  repeat  that  the  direction  was 
right,  and  I  think  the  conviction  ought  to  be  affirmed. 

Conviction  affirmed. 
Solicitor  for  defendant  :   R.  K.  Macnish. 


B.    V.    COATH. 

Lutwyche  J. 


[In  Banco.] 
EMMERSON  v.  CLARKE.* 
[3  S.C.R.  76. — Note. — Re  Haughton,  cited  in  toot  note,  was  also  reported  in  5  S.C.R. 
53,  and  is  reprinted  herein,  post.     See  also  Millis  v.  Kiefer  (10  Q.L.J.  142, 
post),  and  CUSord  v.  Wliite  (4  Q.J.P.R.  132, 1910,  St.  R.  Qd.  364).] 

Cattle  Stealing  Prevention  Act  (17    Vic,  No.   3),  s.    61 — User^ 
Tresspass — Prohibition — Penalty — Objection  not  taken  in  Court 
below — Costs. 
To  constitute  an  "  user  "  under  s.  6  of  17  Vic,  No.  3,  there  must  be  an  employ- 
ment of  the  animal  taken  for  the  purposes  of  profit,  convenience,  or  pleasure.     The 
intent  is  immaterial.     A  person  might  be  brought  within  the  provisions  of  the  Act 
without  evidence  of  »  "  taking." 

In  re  Bowman  (6  S.C.R.  (N.S.W.)  15),  questioned. 

Application  on  behalf  of  Daniel  Ralph  Emmerson  to  make 
absolute  a  rule  nisi  calhng  upon  Francis  Clarke,  Frederick  William 


1872. 

9th, ISth 
September. 

Cockle  a.J 
Lutwyche  J. 


*  Followed  in  Be  Haughton  (1  Q.L.R.  (Pt.  II.)  p.  53), 
t  The  Criminal  Code  (63  Vic,  No.  9),  s.  445 


72  QUEENSLAND   JUSTICE   OF   THE   PEACE. 

Emmeeson  v.      Myles,  William  Clarke,  and  Frederick  Kilner,  justices,  and  Norman 
Claeke.         shadwell  Campbell  Berry,  informant,  to  show  cause  why  a  prohibi- 
tion should  not  issue  restraining  further  proceedings  on  an  order 
made  by  the  said  justices  at  the  Police  Court,  Bowen,  convicting 
the  appellant  of  unlawfully  using  cattle  contrary  to  the  pro- 
visions of  s.  6  of  the  Act  17  Vic,  No.  3,  and  why  Berry  should 
not  pay  the  costs  occasioned  by  the  proceedings  on  the  grounds 
(1)  that  there  was  no  evidence  of  any  using  of  the  cattle  within 
the  meaning  of  The  Cattle  Stealing  Prevention  Act ;   and  (2),  that 
certain  of  the  justices  who  adjudicated  in  the  matter  were  not 
present  during  the  whole  of  the  trial.     From  the  affidavits  in 
support  of  the  rule  it  appeared  that  Daniel  Ralph  Emmerson, 
the  proprietor  of  Proserpine  run,  was  summoned  on  the  informa- 
tion of  Berry,  the  superintendent  of  Crystal  Brook  run,  which 
adjoins  Proserpine,  under  s.  6  of  17  Vic,  No.  3,  for  taking  and  using 
26  head  of  cattle.     Part  of  the  evidence — the  examination  in 
chief — of  Berry  was  heard  before  Francis  Clarke,  R.  S.  Warry, 
and  F.  W.  Myles  on  the  morning  of  9th  of  April,  and  at  1  o'clock 
an  adjournment  took  place  for  an  hour.     When  the  Court  resumed, 
Warry  did  not  sit  again  in  the  case,  but  Wilham  Clarke  and 
Frederick  Kilner  took  seats   on  the   Bench,   and  although  the 
evidence   taken   before   the   adjournment   was   not   re-sworn  or 
taken  afresh,  they  adjudicated  in  the  case.     From  the  evidence 
adduced  at  the  hearing  it  appeared  that,  on  the  31st  of  March 
previous.  Berry  found  in  the  yards  of  Crystal  Brook  some  cattle 
which  were  claimed  by  William  Emmerson,  son  of  the  defendant, 
and  26  head  belonging  to  Mr.  Holt,  the  proprietor  of  Crystal 
Brook.     The  cattle  claimed  by   William  Emmerson — about  25 
head — had    been   placed   there    by    Berry's    permission.     About 
sundown  the  same  day  the  defendant,  D.  R.  Emmerson,  came 
to  the  yards  with  two  men  and  said  he  had  tracked  some  cattle, 
which  had  been  stolen,  from  Proserpine  to  Crystal  Brook  yard, 
and  that  the  animals  in  the  yard  were  the  same.     Berry  said 
some  of  the  cattle  were  his,  and  some  were  claimed  by  Wilham 
Emmerson,  but  the  defendant  claimed  them  as  having  been  stolen 
from  his  run.     After  some  conversation  Berry  told  him  to  draft 
out  the  cattle  he  claimed,  but  the  defendant  said  it  was  too  dark 
to  draft  then,  and  he  would  take  the  lot.     He  then  threw  down  the 
rails  and  told  his  men  to  drive  the  cattle  out.    Berry  called  upon  all 
present  to  witness  that  he  was  taking  the  cattle  forcibly.     Defend- 
ant drove  the  cattle  away,  and  as  he  did  so  he  said,  "  I  will  be 
responsible  to  Mr.  Holt  for  all  cattle  of  his  that  are  here."     Berry 


CRIMINAL  REPORTS,  1860-1907.  73 

replied  that  he  had  committed  an  illegal  act,  and  would  take      Bmmekson  v. 

Clarke 
proceedings  against  him.     On  the  following  day  Berry  saw  some  

of  the  cattle  at  Proserpine,  and  defendant  asked  him  to  take 
possession  of  them,  which  he  refused  to  do.  On  the  same  day 
he  received  the  following  letter  from  the  defendant : — "  There 
has  been  some  cattle  illegally  driven  off  Proserpine  run,  and  as 
soon  as  I  heard  of  it  I  got  my  horses  and  tracked  them  to  Crystal 
Brook  yards,  where  I  took  possession  of  them,  and  brought  them 
to  Proserpine.  The  following  morning  I  found  there  was  some 
of  your  weaners  with  them,  and  by  your  man's  assistance  we 
drafted  them,  and  I  now  send  them  back  to  Crystal  Brook.  In 
coming  up  to  Proserpine  last  night  we  lost  some  owing  to  the 
darkness.  I  have  sent  my  men  to  look  for  them.  I  shall  be 
obUged  if  you  will  assist  them,  and  let  me  know  if  there  is  any 
more  of  our  cattle  on  Crystal  Brook  run.  P.S. — I  shall  be  muster- 
ing several  more  days,  and  request  you  to  send  a  man  up  to  assist 
collecting  the  remainder  of  your  cattle."  Berry  subsequently 
laid  an  information  against  defendant,  and  obtained  a  warrant 
to  search  for  the  cattle  belonging  to  Mr.  Holt.  He  found  14 
head  and  a  calf,  but  not  the  others.  There  was  a  dispute  going  on 
about  agistment  between  the  defendant  and  William  Emmerson, 
who  drove  the  cattle  he  claimed  and  some  of  Holt's  from  Proserpine 
into  Crystal  Brook  yards.  He  had  no  permission  to  remove  the 
cattle  from  Proserpine.  It  appeared  from  the  evidence  of  Daniel 
Emmerson  that  he  and  defendant  and  another  man  drove  the 
cattle  claimed  by  William  Emmerson  out  of  th?  yard,  and  the 
others  accompanied  them,  and  were  not  taken  voluntarily  or 
intentionally.  It  was  too  late  to  draft  them,  and  they  could 
not  help  the  others  following.  The  amount  due  for  agistment 
had  not  been  paid  when  William  Emmerson  took  the  cattle  off 
Proserpine.  The  Bench  found  the  defendant  guilty,  and  inflicted 
a  penalty  of  £3  per  head — amounting  to  £78 — and  £11  costs  and 
expenses. 

Affidavits  in  reply  were  read,  from  which  it  appeared  that  when 
Wm.  Clarke  and  Frederick  Kilner  took  their  seats  on  the  Bench 
the  evidence  of  Berry,  which  had  been  previously  taken,  was 
read  ;  and  after  his  cross-examination  the  whole  of  his  evidence 
was  read  over,  and  he  stated  that  it  was  correct.  It  was  also 
stated  that  the  Justices  were  unanimous  in  their  decision. 

Lilley  Q.C.  and  McDevitt,  for  the  appellant,  moved  the  rule 
absolute. 

Blake   Q.C,   for   the   informant.     The   conviction   was  right.. 


74 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


Emmebson  v. 
Clabke 


Lutwyche  J. 


The  defendant  went  after  the  cattle  for  the  purpose  of  retaking 
them  because  the  agistment  had  not  been  paid  ;  but  he  had  no 
right  to  do,  because  a  person  could  not  have  a  lien  on  cattle  for 
agistment.  Even  as  far  as  William  Emmerson's  cattle  were 
concerned,  defendant  had  no  right  to  interfere,  because  they  were 
in  possession  of  the  owner.  (Plunkett,  p.  67,  note  (a)  ;  In  re 
Bowman,  6  S.C.R.  (N.S.W.)  15  ;  B.  v.  Frew,  7  S.C.R.  (N.S.W.) 
111).  As  to  the  proceedings  before  the  Magistrates,  it  was 
sufficient  if  the  whole  of  the  evidence  was  heard  before  two  justices, 

Bramston  A.O.  :  The  magistrates  were  unanimous.  Courts  are 
unwilhng  to  inquire  into  the  votes  of  justices.  (Penny  v.  Slade,  5 
Bing.  N.C.  469,  8  L.J.C.P.  221  ;  B.  v.  J  J.  of  Leicestershire,  1  M.  &  S, 
442,  14  R.R.  494).  The  defendant's  conduct  closely  approached 
a  breach  of  the  peace. 

Lilley  Q.C.  :  According  to  the  Act,  if  therewas  a  taking  without 
a  using,  there  could  not  be  a  conviction,  There  must  also  be  a 
dishonest  object  or  purpose.  The  cattle  might  be  taken  by 
accident,  unintentionally,  or  under  a  claim  of  right. 

C.A.V. 

13th  September,  1872. 

Lutwyche  J.  :  The  rule  nisi  was  moved  for  on  two  grounds. 
First,  that  there  was  no  evidence  of  a  user  by  Emmerson  of  the 
Crystal  Brook  cattle  ;  and,  secondly,  that  the  case  was  not  heard 
whoUy  and  throughout  by  all  the  justices  who  signed  the  con- 
viction. With  regard  to  the  second  point,  we  are  both  of  opinion 
that  it  cannot  be  sustained  ;  first,  because  there  were  two  justices 
who  heard  the  case  from  end  to  end,  and  according  to  s.  6  of 
2''h,e  Cattle  Stealing  Prevention  Act  a  conviction  may  be  by  any 
two  justices  of  the  peace  in  Petty  Sessions  assembled  ;  and, 
secondly,  because  if  the  objection  that  the  whole  case  was  not 
heard  by  all  the  justices  was  not  taken  at  the  time,  it  appears 
from  authority  that,  although  the  witness  was  not  sworn  in  the 
presence  of  the  other  justices — in  this  case  the  three  other  justices 
— nevertheless,  his  evidence  would  not  be  open  to  rejection. 
It  appears  that  when  a  witness  is  not  sworn  on  a  trial,  and  the 
objection  has  not  been  taken  at  the  trial,  that  the  person  against 
whom  the  verdict  is  found,  and  against  whose  interest  the  evidence 
is  taken,  is  not  entitled  on  that  ground  to  a  new  trial ;  and  we 
think  therefore  that,  on  both  of  these  grounds,  that  the  second 
objection  cannot  prevail.  With  regard  to  the  first  objection, 
I  am  of  opinion  that  there  was  no  reasonable  evidence  from  which 


CEIMINAL  REPORTS,  1860-1907. 


75 


the  justices  who  heard  the  case,  and  who  convicted  Emmerson, 
could  infer  that  there  had  been  a  user  by  Emmerson  of  the 
Crystal  Brook  cattle.  The  Act  under  which  the  charge  was 
brought  against  Emmerson,  like  most  Acts  that  were  passed 
in  the  earlier  Legislative  days  of  the  parent  colony,  is  difficult 
to  construe  according  to  the  ordinary  rules  of  construction  which 
are  applied  to  legislative  enactments  ;  but  in  the  present  case 
I  think  we  may  see  our  way  very  clearly  to  the  conclusion  that 
Emmerson  has  not  brought  himself  within  the  penal  provisions 
of  s.  6  of  the  Act.  The  penalty  under  that  section  being  only  for 
using  it  is  clear  there  must  be  evidence  of  user.  Now,  it  may  be  a 
matter  of  some  difficulty  to  say  what  is  evidence  of  user,  but  in 
most  cases  referred  to  by  the  Act  there  would  be  evidence  from 
which  a  user  might  be  inferred.  In  the  first  place  the  Act  says  : 
"  If  any  person  shall  take,  use,  or  in  any  manner  work  any  cattle  ;  " 
and  it  is  clear  that  "  cattle,"  as  described  in  the  second  section, 
could  not  be  worked  without  being  used,  and  the  penalty  in  the 
sixth  section  is  confined  to  cattle  that  are  used.  The  second 
section,  in  defining  the  meaning  of  "  cattle,"  says  it  shall  extend 
to  and  include  horses,  mares,  filUes,  foals,  geldings,  colts,  bulls, 
buUocks,  cows,  heifers,  steers,  calves,  sheep,  lambs,  goats,  pigs, 
mules,  and  asses.  Many  of  these  are  animals  of  draught  or  burden, 
and  some,  which  are  not  animals  of  draught  or  burden  kiay,  never- 
theless, be  used  within  the  meaning  of  the  sixth  section.  Sheep, 
for  instance,  might  be  shorn,  and  in  that  case  it  would  be  a  user. 
It  might  require  some  ingenuity  to  determine  how  pigs  might 
be  worked  or  used  (unless  actually  appropriated) ,  though  they 
might  be  taken.  But  I  think,  in  respect  to  all  the  other  animals, 
there  might  be  a  user,  though  not  perhaps  a  working,  as  in  the  case 
of  sheep  or  milch  cows,  which  might  be  used  by  being  milked. 
The  question  then  arises  :  Was  there  any  evidence  given  before 
the  justices  from  which  they  could  infer  that  there  was  a  user  of 
Crystal  Brook  cattle  ?  It  appears  from  the  evidence  that  these 
cattle,  together  with  some  twenty-six  head  which  had  been  pre- 
viously on  Proserpine  run,  had  been  tracked  from  that  run  to  Mr. 
Holt's  yard  at  Crystal  Brook,  and  that  Emmerson  went  to  that 
yard  at  night,  and  under  a  claim  of  right  to  the  Proserpine  cattle, 
ordered  his  men  to  let  down  the  rails  and  drive  the  Proserpine 
and  Crystal  Brook  cattle  away.  That  is  all  that  appears  from  the 
evidence  given  on  behalf  of  the  prosecution,  and  I  confine  myself 
to  that,  because  we  do  not  sit  here  to  try  the  case  over  again, 
or  to  determine  whether  the  justices  might  not,  if  they  had  heard 


Emmerson  v. 
Clakke. 

Latwyche  J. 


76 


QUEENSLAND  JUSTICE  OP  THE  PEACE. 


Emmebson  v. 
Clare;e:. 

Lutwyohe  J. 


the  whole  of  the  evidence,  have  safely  arrived  at  a  different 
conclusion.  It  is  enough  if  we  can  gather  from  any  of  the  evi- 
dence that  there  was  sufficient  to  warrant  the  justices  in  arriving 
at  the  conclusion  that  the  cattle  had  been  used.  Now,  in  the  case 
referred  to  by  the  learned  Attorney-General  and  Mr.  Blake,  the 
Supreme  Court  of  New  South  Wales  upheld  the  direction  of  Judge 
Meymott  that  if  the  cattle  were  driven  away  without  the  owner's 
consent,  even  if  only  for  the  purpose  of  inducing  other  cattle 
to  go  quietly,  that  would  be  a  user  ;  and  I  am  far  from  saying 
that  there  might  not  be  cases  in  which  driving  away  a  stranger's 
cattle  for  the  purpose  of  enabling  others  to  be  driven  quietly, 
or  that  cases  would  not  arise  in  which  such  a  taking  would  be 
a  user.  According  to  my  construction  of  the  Act,  to  constitute 
a  user  there  must  be  an  employment  of  the  animal  taken  for  the 
purposes  of  profit,  convenience,  or  pleasure.  Intent,  I  take  to 
be  immaterial.  It  does  not  seem  to  me  to  be  at  all  within  the  fair 
construction  of  the  Act  that  there  should  be  any  intention,  honest, 
or  dishonest.  The  act  is  sufficient  if  it  be  for  the  purpose  of  ob- 
taining profit,  or  of  certain  convenience  to  the  person  taking  the 
animal,  or  for  his  own  pleasure  or  amusement.  Bilt  it  does 
not  seem  to  me  in  the  present  case  Emmerson  took  the  Crystal 
Brook  cattle  either  for  his  profit,  or  his  convenience,  or  his  pleasure. 
It  was  too  dark,  as  the  evidence  shows,  to  draft  the  cattle, 
and  he  was  anxious  to  get  his  own  cattle,  or  those  he  claimed 
as  his  own,  home  as  soon  as  he  could.  Now,  they  were  Proserpine 
cattle,  and  certainly  they  would  not  require  the  assistance  of  the 
Crystal  Brook  cattle  to  enable  them  to  find  their  way  back  to  the 
run  from  which  they  had  been  taken.  There  could  have  been  no 
inducement  operating  on  the  mind  of  Emmerson  to  make  him 
take  the  Crystal  Brook  cattle,  and  it  appears  that  at  the  time 
he  offered  to  be  responsible  for  all  Mr.  Holt's  cattle  that  were 
there.  So  far,  then,  from  being  a  source  of  profit  or  convenience, 
or  pleasure  to  him,  he  would  have  been  much  better  without  the 
Crystal  Brook  cattle  than  with  them.  He  took  no  particular 
pains  to  keep  them  together,  for  eight  of  them  were  missed  on  the 
road  before  arriving  at  Proserpine  Station,  and  it  seems  to  me 
that  the  driving  away  of  the  Crystal  Brook  cattle  was  incidental 
only  to  his  desire  to  re-obtain  possession  of  the  cattle  he  claimed 
as  his  own  property.  I  think,  therefore,  there  was  no  reasonable 
evidence  from  which  the  justices  could  come  to  the  conclusion 
they  did  come  to.  I  observe  that  in  Bowman's  Case  (6  S.C.R. 
(N.S.W.)  16)  the  Court  seemed  to  have  thought  that  in  order  to 


OEIMINAL  REPORTS,  1860-1907. 


77 


bring  a  person  within  the  provisions  of  the  sixth  section,  there 
must  be  a  taking  as  well  as  a  using.  A  cow,  in  that  particular 
instance,  was  found  on  the  run,  and  was  only  milked,  and  they 
considered  the  conviction  ought  not  to  have  been  made,  but  I 
confess  that  if  a  case  of  that  kind  should  come  before  this  court, 
I  should  pause  before  I  came  to  the  same  conclusion.  I  think 
the  proposition  is  laid  down  much  too  widely.  I  think  a  person 
might  be  brought  within  the  provisions  of  the  Act  without  a 
taking  at  all ;  for  instances  have  occurred,  and  may  occur  again, 
where  the  services  of  a  valuable  entire  or  bull  have  been  obtained 
without  taking  the  animal,  simply  by  taking  down  a  portion  of  the 
fence  of  the  paddock  in  which  they  were  closed,  and  letting  in 
cows  or  mares — a  very  serious  offence,  and  one  which  I  hope  will 
be  severely  punished  when  it  is  proved.  I  think  in  that  case, 
without  a  taking,  such  a  using  would  be  within  the  meaning  of 
the  section.  Without  going  further  at  present — because  it  may 
be  expedient  to  consider  in  what  way  this  appUcation  should  be 
dealt  with — I  think  in  justice  the  prohibition  ought  to  issue, 
but  as  a  matter  of  pure  justice  only — strict  justice  on  a  point 
of  law,  because  I  cannot  conceal  from  myseK  that  the  conduct 
of  Emmerson  was  quite  unjustifiable.  He  committed  a  wilful 
trespass,  and  was  guilty  of  conduct  which  almost  amounted  to  a 
breach  of  the  peace,  and  certainly  tended  strongly  to  provoke 
an  offence  of  that  kind.  I  do  not  consider  that  the  applicant 
is  at  all  entitled  to  indulgence  or  anything  like  the  favourable 
consideration  of  the  Court.  As  a  matter  of  strict  law,  I  think  he 
is  right  in  this  application,  and  therefore  the  prohibition  should 
issue.  It  might  perhaps  be  better  for  him  to  allow  the  conviction 
to  stand.  We  have  power  to  make  him  pay  costs  notwithstand- 
ing that  we  have  directed  the  prohibition  to  issue,  .and  we  must 
do  what  we  think  is  fair  and  just  under  the  circumstances  of  the 
cases.  On  that  point  I  shall,  in  conjunction  with  the  learned 
Chief  Justice,  reserve  my  decision  as  to  the  particular  way  we 
will  deal  with  the  costs  or  the  return  of  the  money,  which  is  op- 
tional. In  Bowman's  Case,  the  fine  having  been  paid  and  distri- 
buted, the  Court  refused  to  make  any  order  as  to  the  return  of  the 
money,  but  they  ordered  the  prohibition  to  issue. 

Cockle  C.J.  concurred. 

The  prohibition  was  allowed  ;    the  question  of  costs  and  the 
return  of  the  money  reserved. 

18th  September. 
Cockle    C.J.  :     This   conviction   was   the   unanimous   decision 


Emmebson  v. 
Cmbke. 

Lutwyohe  J. 


Cookie  C.J. 


78 


QUEENSLAND  JUSTICE   OF  THE   PEACE. 


Emmbeson  )■. 
Clarke, 

Cockle  C.J. 


of  four  justices,  who,  in  our  opinion,  rightly  heard  the  case  through- 
out ;  but  on  a  strict  interpretation  of  the  law,  and  with  no  merits 
that  we  can  see,  the  defendant  has  come  before  us  to  reverse  the 
proceedings.  He  has  not  come  simply  to  relieve  himself  from 
the  burden  inflicted  on  him,  but,  in  the  first  place,  he  prays  costs 
against  the  prosecutor  ;  he  makes  an  imputation  against  one  of 
the  justices  ;  and  he  raises  one  unfounded  ground  of  appeal. 
Now,  being  of  opinion  that  the  conviction  could  not  be  sustained 
on  the  evidence,  we  must,  of  course,  relieve  him  from  the  conse- 
quences of  it ;  but  he  has  no  claim  to  our  consideration  on  the 
question  of  costs.  We  cannot  make  him  pay  the  costs  on  the 
whole  of  the  rule,  because  it  would  be  unjust  to  say  that  he  should 
pay  the  costs  of  relieving  himself  from  a  judgment  which  cannot 
be  sustained  ;  but  so  far  as  the  form  of  the  rule  is  concerned, 
considering  that  he  had  brought  persons  before  us  who  would 
otherwise  have  refrained  from  coming  here,  we  think  that  the 
rule  must  be  made  absolute.  He  will,  of  course,  get  no  costs, 
and  he  will  pay  the  costs  of  William  Clarke,  and  he  will  also  pay 
the  respondent  Berry  and  the  justices  the  costs  occasioned  by  so 
much  of  the  affidavits  as  relate  to  the  second  ground  of  the  rule. 
The  penalty  and  costs  must  be  returned,  and  the  conviction 
must  be  quashed. 


1873. 
15th  October. 

Ltitu-yche  J. 


[In  Chambers.] 
R.  V.  KELLY. 

[  3  S.C.B.  199.— Note.— Ss.  27  and  28  ot  35  Vic,  No.  4,  are  repealed,  see  now  ss. 
447  and  448  of  Criminal  Code.] 

The  Brands  Act  of  1872  (35  Vic,  No.  4),  ss.  27,  28,  35— Wilfully 
branding — Evidence  of  owner shif. 

A  registered  brand  is  prima  facie  evidence  of  ownership  for  the  prosecution,  but 
is  not  to  be  used  for  evading  a  prosecution. 

Section  27  of  The  Brands  Act  of  1872  applies  to  all  cattle,  branded  or  unbranded, 
and  it  is  no  defence  to  a  prosecution  under  that  section  to  say  that  the  defendant 
had  made  himself  amenable  to  the  provisions  of  s.  28. 

Application  for  an  order  nisi  for  a  writ  of  prohibition  against 
G.  W.  ElUott,  Police  Magistrate,  Toowoomba,  and  John  Hegarty, 
of  Stoney  Pinch,  near  Toowoomba,  farmer. 

Hely  in  support  of  the  application. 

The  facts  of  the  case  were  as  follow : — On  the  3rd  of  October, 


CRIMINAL  REPORTS,   1860-1907.  "79 

Thomas  J.  Kelly  was  charged  before  the  Police  Magistrate  of       E.  d.^Kelly. 

Toowoomba,  on  an  information  laid  under  s.  27  of  The  Brands 

Act  of  1872,  with  wilfully  branding  a  heifer,  of  which   he    was 

not  the  rightful  owner,  with  his  registered  brand.     John  Hegarty 

swore  that  the  heifer  in  question  was  his  property,  and  that  it 

bore  his  brand  JH  on  ribs  and  No.  2  on  the  rump  on  the  milking 

side.     Two  months  ago  he  missed  this  heifer  and  another  steer, 

but   on   October   26  she  came   back,   and  he  then  noticed  that 

she  had  the  brand  TKO  over  his  (Hegarty's)   No.  2,  and  that  she 

had  been  newly  ear-marked.     This  brand  he  discovered  to  be 

defendant's  registered  brand,  and  the  next  day  he  went  to  his 

place  and  told  him  that  he  had  made  a  mistake  in  branding  the 

heifer.     Kelly  said  it  must  have  been  a  great  mistake  if  he  had 

done  so,  and  that  he  would  give  Hegarty  two  unbranded  ones 

if  his  (Hegarty's)  brand  was  found  on  the  heifer,  together  with 

his  (Kelly's).     Hegarty's  ownership  of  the  heifer  was  also  sworn 

to  by  John  Quinlan,   farmer,   Gowrie  Creek,   and  John  Curtis, 

farmer,  below  the  Range. 

For  the  defence,  evidence  was  adduced  to  show  that  the  heifer 
in  dispute  was  remarkably  like  one  possessed  by  the  defendant, 
.and  that  Hegarty's  brand  was  very  faint  and  dim.  Robert 
Macarthy,  who  was  frequently  in  the  defendant's  employment 
•during  the  last  seven  years,  swore  that  he  had  assisted  Kelly 
in  putting  his  registered  brand,  on  the  cow  eight  months  ago, 
and  also  his  ear-mark.  At  that  time  no  former  brand  was  to  be 
seen  on  the  heifer. 

Hely  stated  that  the  information  was  laid  under  s.  27  of  The 
Brands  Act,  which  enacted  that  "  If  any  person  shall  wilfully 
brand  any  stock  of  which  he  is  not  the  rightful  owner  or  shall 
wUfuUy  cause  direct  or  permit  any  stock  of  which  he  is  not  the 
owner  to  be  branded  with  his  brand  such  person  shall  on  con- 
viction for  every  such  offence  in  a  summary  way  forfeit  and  pay 
any  sum  not  exceeding  £50."  The  Magistrate  had  exceeded  his 
jurisdiction,  as  the  evidence  clearly  showed  that  the  defendant 
had  not  wilfully  branded  the  heifer,  knowing  her  to  be  not  his 
own,  for  he  had  really  believed  her  to  be  his  property.  The 
word  "  wilfully  "  meant  intentionally  and  with  premeditation. 
If  there  were  any  offence  at  all  committed  by  the  defendant  it 
was  against  s.  28  of  the  Act,  and  not  s.  27.  Section  28  enacted 
"  That  any  person  who  shall  wilfully  blotch  deface  or  otherwise 
render  illegible  or  alter  any  brand  or  mark  upon  stock  or  permit 
any  such   brand   or   mark  to   be  blotched  defaced   or  otherwise 


so  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

E.  V.  Keixt.  rendered  illegible  or  shall  wilfully  cause  direct  or  permit  any 
stock  to  be  marked  on  the  ear  or  dewlap  shall  on  conviction 
for  every  such  offence  forfeit  and  pay  any  sum  not  exceeding 
£20  for  every  head  of  stock  "  so  treated.  The  brand  of  the  defend- 
ant, it  was  sworn,  was  put  on  over  Hegarty's  No.  2,  and  also 
the  defendant's  ear-mark  was  put  over  the  plaintiff's.  The 
evidence  did  not  therefore  support  the  information,  inasmuch  as  it 
was  laid  under  the  wrong  section  ;  and  furthermore,  the  defend- 
ant was  fined  £30,  whereas  the  highest  penalty  allowed  by  s.  28 
was  £20.  Again,  s.  35  provided  that  for  the  purpose  of  any 
prosecution  or  action  under  this  Act,  any  registered  brand  upon 
any  stock  shall  be  prima  facie  evidence  of  the  ownership  of  such 
brand,  and  of  the  stock  on  which  such  brand  is  imprinted.  It 
was  proved  that  Kelly's  was  the  only  registered  brand  on  the 
heifer,  and  according  to  this  section  that  should  be  taken  as 
prima  facie  evidence  that  she  belonged  to  him. 

Lntwyehe  J.  Ltjtwyche  J.  :    In  the  first  place  there  was  sufficient  evidence 

on  the  face  of  the  depositions  to  show  that  the  heifer  belonged 
to  Hegarty,  and  also  that  Kelly  had  branded  her  with  his  brand. 
As  to  the  meaning  of  the  word  "  wilful,"  it  is  hard  to  say  what 
was  the  state  of  the  defendant's  mind  when  he  committed  the 
act,  and  the  decision  of  that  question  must,  I  think,  be  left  to 
the  Bench,  once  it  was  proved  that  the  act  had  been  committed 
by  him.  Again,  they  had  the  defendant's  statement  to  Hegarty 
that  the  heifer  was  his  (Kelly's)  property,  and  that  might  be 
taken  as  evidence  of  his  wilful  commission  of  the  offence.  As 
to  the  registered  brand  being  taken  as  prima  facie  evidence  of 
ownership,  that  applies  in  cases  where  it  is  necessary  for  the 
support  of  a  prosecution,  but  it  is  not  to  be  used  for  the  purpose  of 
evading  a  prosecution.  Otherwise  it  would  be  offering  a  premium 
for  cattle-stealing,  because  any  man  could  go  and  take  a  cow  and 
put  his  own  registered  brand  over  the  old  brand,  and  it  would 
then  have  to  be  held  that  the  cow  was  prima  facie  his  property. 
Section  27  of  the  Act  applies  to  all  cattle,  branded  or  unbranded, 
and  furthermore,  it  is  not  a  sufficient  defence  to  a  prosecution 
brought  under  that  section,  to  say  that  the  defendant  had  made 
himself  amenable  to  s.  28.*  For  these  reasons  the  application 
must  be  refused. 

Solicitor  for  the  applicant  :    Hamilton. 

*  See  Curran  v.  Dowzer  (2  Q.L.J.  45). 


CEIMINAL  REPOETS,  1860-1907. 


81 


BEGIN  A  V.  PORTLEY. 
[3  S.C.R.  202.— Note.— See  also  s.  628  of  Ciimlnal  Code.] 

Criminal   law — Practice — Illness  of  a  juror — Discharge — 11    Vic, 
No.  20,  s.  23.* 

When  a  juror  has  been  taken  ill  and  is  unable  to  act,  and  either  party  objects  to 
a  new  juror  being  added  in  his  place,  the  jurors  must  be  discharged,  and  the  cards 
which  bear  the  names  of  the  jurors  who  have  been  discharged  from  giving  a  verdict 
must  be  returned  to  the  box,  and  a  new  jury  must  be  drawn  from  the  box,  leaving 
the  Crown  and  the  prisoner  to  exercise  their  right  to  challenge  as  before. 

Crown  Case  Reserved. 

The  facts  appear  in  the  judgment. 

Ltjtwyche  J.  :  This  matter  comes  before  the  Court  upon  a 
case  reserved  from  the  last  criminal  Assize  under  the  provisions 
of  the  Act  13  Vic,  No.  8  (Call.  1937).  The  information  charged 
the  prisoner  with  stealing,  while  servant  to  Richard  Gill,  goods, 
the  property  of  her  master.  A  large  proportion  of  the  48  jurors 
returned  on  the  jury  panel  were  challenged,  several  being  desired 
to  stand  aside  by  the  Crown,  while  on  the  part  of  the  {)risoner 
the  full  number  (20)  of  peremptory  challenges  allowed  by  law 
in  cases  of  felony  were  exhausted.  A  full  jury  having  been  at 
length  obtained,  the  trial  proceeded,  but  while  a  witness  was 
beiQg  examined  for  the  defence,  one  of  the  jurymen  was  seized 
with  an  epileptic  fit,  and  was  carried  out  of  Court  in  a  state 
of  insensibiUty.  After  some  time  had  elapsed  it  was  stated  to 
the  Court  by  a  surgeon  who  had  attended  the  ailing  juryman  that 
although  he  was  somewhat  better  it  was  doubtful  whether  he 
might  not  be  visited  by  another  fit  if  he  were  required  to  act  as 
a  juror  during  that  day,  whereupon  the  judge  of  assize  said  he 
was  of  opinion  that  the  jury  should  be  discharged  from  giving 
a  verdict,  and  the  jury  were  so  discharged  accordingly.  The 
Crown  Prosecutor  suggested  that,  in  order  to  save  time,  a  new 
juror  might  be  added  to  the  eleven  who  had  heard  the  evidence 
already  given,  and  B.  v.  Edwards  (Russ.  &  Ry.  234,  4  Taunt. 
309,  13  R.R.  601),  was  cited.  Mr.  Blakeney,  however,  who 
was  counsel  for  the  prisoner,  refused  to  consent  to  this  mode 
of  proceeding,  unless  accompanied  by  a  renewal  of  her  right  of 
peremptory  challenge,  which  the  judge  refused  to  allow,  and 
ruled  that  the  trial  should  proceed  with  a  fresh  juror  added  to 
the  original  eleven,  and  that  the  prisoner's  right  of    challenge 


Supreme  Court. 

New  South  Wales, 

Moreton  Bay.. 

1859. 

5th  July. 

Lutwyche  J. 


Lutwyche  J. 


*  See  now  31  Vic.,  No.  34,  s.  22. 


82 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


Regina  v. 

POBTLEY. 

Lutwyehe  J 


should  be  confined  to  the  person  or  persons  called  to  complete 
the  jury.  Another  juror  having  been  called,  and  having  answered 
to  his  name,  he  and  the  original  eleven  were  all  sworn,  and  the 
prisoner  was  given  in  charge  to  them.  After  the  new  jury  had 
been  impanelled  they  were  locked  up  for  the  night  in  a  room 
at  one  of  the  principal  hotels,  and  the  trial  was  resumed  on  the 
morning  following,  when,  by  consent  of  counsel  on  both  sides  (but 
without  waiving  the  objection  to  the  disallowance  of  the  right 
of  challenge)  the  evidence  which  had  been  given  on  the  previous 
day  by  the  witnesses  for  the  Crown  was  read  over  to  each  of  them 
by  the  judge  from  his  notes,  and  each  was  asked,  after  having 
been  re-sworn,  whether  his  evidence  had  been  correctly  taken 
down,  and  whether  his  evidence  was  true.  The  trial  then  pro- 
ceeded, and  the  prisoner  was  convicted.  The  question  of  law 
for  the  opinion  of  the  Court  in  Banco  is,  whether  the  prisoner 
was  rightly  convicted,  or  whether  there  was  a  mis-trial  under 
the  circumstances  above  set  forth.  Upon  an  examination  of  the 
printed  reports,  it  appears  that  the  point  raised  by  this  case 
has  never  yet  been  determined  by  a  judicial  decision  of  any  of 
the  EngUsh  courts.  The  practice,  however,  as  might  be  inferred 
from  R.  V.  Beere  (2  M.  &  Rob.  472)  would  be  in  favor  of  the  general 
right  of  challenge  as  claimed,  but  neither  from  that  case  nor 
from  R.  V.  Edwards  (supra)  can  it  be  collected  that  the  privilege 
would  have  been  allowed  if  the  prisoner,  as  in  the  present  instance, 
had  previously  exhausted  the  full  number  of  his  peremptory 
challenges  ;  on  the  contrary,  it  would  rather  seem  from  the 
report  of  R.  v.  Edwards,  in  Taunton,  that  such  a  right  would 
have  been  denied  by  the  Court,  for  Mr.  Baron,  Wood  was  there 
of  opinion  that  the  opportunity  for  peremptory  challenge  had 
gone  by,  and  that  the  prisoner  could  only  challenge  for  cause 
shown.  It  is  unnecessary,  however,  to  dwell  upon  speculative 
probabilities,  because  the  Court  thinks  that  the  question  is  con- 
cluded by  the  language  of  the  colonial  Jury  Act,  which  was  not 
referred  to  at  the  trial  (11  Vic,  No.  20,  Call.  1767).  Section  23 
enacts  that  upon  calling  for  trial  any  criminal  issue  the  clerk  of 
the  Court  shall  in  open  court  put  pieces  of  card  furnished  by  the 
sheriff  into  a  box,  and  shall  draw  out  therefrom  the  said  pieces 
of  card,  one  after  the  other,  until  twelve  men  shall  appear  without 
just  cause  of  challenge,  which  said  men,  being  duly  sworn,  shall 
be  the  jury  to  try  such  issue.  It  then  provides  that  the  pieces  of 
cards  containing  the  names  of  the  jurors  so  drawn  and  sworn  as 
aforesaid  shall  be  kept  apart  by  themselves  until  such  jury  shall 


CRIMINAL  REPORTS,  1860—1907. 


8S 


liave  given  in  their  verdict,  or  shall  he  discharged,  and  that  then 
the  said  'pieces  of  card  shall  he  returned  to  the  hox,  there  to  be  k^t 
with  the  other  names  remaining  undrawn,  and  so  toties  quoties 
so  long  as  any  issue  remains  to  be  tried.  There  is  indeed  an 
additional  proviso  authorising  the  trial  of  any  criminal  issue 
with  the  same  or  some  of  the  same  jury  previously  drawn  to  try 
any  other  criminal  issue.  But  it  is  to  be  noticed,  in  the  first 
place,  that  the  jury  which  had  been  previously  drawn  was  not 
drawn  to  try  any  other  issue  than  that  joined  between  the  Crown 
and  Bridget  Portley  ;  and,  secondly,  that  such  a  trial  can  only  be 
had  where  no  objection  is  made  on  behalf  of  the  Queen  or  any 
other  party.  And  as  Mr.  Blakeney  did  not  object  to  try  the  issue 
joined  between  the  Crown  and  the  prisoner,  except  upon  conditions 
which  the  judge  of  assize  had  no  power  to  grant,  the  Court  is  of 
opinion  for  both  of  these  reasons,  that  the  course  of  proceeding 
adopted  at  the  trial  was  irregular,  and  that  as  a  mistrial  has  con- 
sequently taken  place,  a  new  trial  must  be  granted.  The  practice 
which  must  be  observed  in  future  in  similar  cases  wiU  be  to  return 
to  the  box  the  cards  which  bear  the  names  of  the  jurors  who  have 
been  discharged  from  giving  a  verdict,  and  to  draw  from  the  box 
a  new  jury,  leaving  the  Crown  and  the  prisoner  to  exercise  their 
right  of  challenge  as  before. 


Regin^  V, 

PoRTLIiY. 

Lutwyehe  J. 


[In  Banco.] 
REGINA  V.  HOSKINGS. 

[4  S.C.R.  24.— Note.— See  s.  350  of  Criminal  Code,  and  R.  v.  Schloss  and  Maguire 

(8  Q.L.3.  21,  post).] 

Indecent  assault — Evidence  of  non-consent — Witness. 

On  a  charge  of  indecent  assault,  evidence  of  want  of  consent  ought  to  be  given, 
but  where  it  is  shown  that  the  person  assaulted  is  incapable  of  giving  consent,  it  is 
not  necessary  to  call  such  person  as  a  witness. 

Cbown  Case  Reserved  by  C.  H.  Blakeney,  Judge  of  the 
Western  District  Court  at  Dalby. 

The  prisoner,  WilUam  Hoskings,  was  tried  at  Dalby  for  com- 
mitting an  indecent  assault  upon  a  girl,  aged  sixteen,  named 
Jane  Howe,  on  October  25th  last.  The  girl  Hved  with  her 
mother,  and  had  been  left  by  her,  on  the  day  in  question,  in  the 
kitchen  of  their  house.  On  returning  in  about  an  hour  she 
found  the  prisoner  in  the  act  of  committing  the  offence  for  which 


1873 
8th  December 

Cockle  G.J. 
Lvtwyche  J. 


84  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

Kegina  r.        ]^g  jja^^  been  tried.     On  seeing  her  he  immediately  ran  away  : 

Hof KINGS.  °  ■'    "■ 

but  she  gave  information  to  the  pohce,   and  he  was  arrested 

the  following  day  and  identified  by  her.  Upon  his  arrest  by 
Constable  Brady  he  was  told  the  charge  against  him,  and 
he  then  said  he  had  not  done  anything  but  what  he  had  paid  for. 
Dr.  Howlin,  a  medical  man,  swore  that  the  girl  had  been  under 
his  care  for  a  very  long  period  ;  that  she  was  subject  to  epileptic 
fits  ;  was  of  a  very  weak  intellect,  and  he  did  not  think  that  she 
was  capable  of  consenting  or  resisting  the  cornmission  of  the 
offence.  In  his  opinion,  however,  she  was  capable  of  appreciating 
the  difference  between  truth  and  falsehood.  Mr:  Chubb,  the 
solicitor  for  the  prisoner,  asked  the  Judge  to  withdraw  the  case 
from  the  jury,  on  the  ground  that  there  was  no  evidence  of 
want  of  consent.  This  he  refused  to  do,  and,  in  his  summing 
up,  told  the  jury  that  if  the  prisoner  exposed  the  person  of  Jane 
Howe  it  was  sufficient  to  sustain  the  information.  On  the 
question  of  consent,  the  jury  received  no  direction,  the  Judge 
holding  that  that  was  a  point  of  law.  Mr,  Chubb  objected 
to  the  Judge's  summing  up  ;  first,  because  the  jury  were  not 
told  to  acquit  the  prisoner  on  the  ground  of  want  of  consent  not 
being  proved  ;  and,  also,  because  Jane  Howe  was  not  called, 
she  being  a  competent  witness.  The  questions  reserved  for  the 
consideration  of  the  Court  were — (I)  Was  the  Judge  right  in 
refusing  to  withdraw  the  case  from  the  jury  on  the  point  raised 
by  the  defendant's  advocate  ;  (2)  was  the  Judge  right  in  refusing 
to  direct  the  jury  to  acquit  the  defendant  on  the  ground  that 
there  was  no  evidence  that  the  assault  was  committed  against 
the  consent  of  Jane  Howe  ;  (3)  ought  the  Judge  to  have  directed 
the  jury  upon  the  points  and  in  the  manner  stated  by  the 
defendant's  advocate  in  his  objections  to  the  directions  ? 

Pring  Q.C.,  for  the  prisoner  :  There  must  be  some  evidence 
of  want  of  consent.  {R.  v.  Johnson,  L.  &  C.  632).  There  is  a 
distinction  between  carnal  knowledge  and  indecent  assault  in  a 
case  of  a  girl  under  twelve  years  of  age.  {R.  v.  Fletcher,  1  C.C.R. 
39;    R.  V.  Beale,  1  C.C.R.   10). 

Hely,  for  the  Crown,  argued  that  submission  was  not  consent. 
(R.  V.  Fletcher,  1  Bell  63  ;  R.  v.  Lock,  2  C.C.R.  10).  Here  there 
was  evidence  of  weakness  of  intellect,  some  evidence  of  violence, 
and  the  prisoner  was  a  stranger.  If  there  is  no  consent,  and  the 
act  is  wrong,  there  is  an  assault.  {R.  v.  Williams,  8  C.  &  P.  286  ; 
R.  V.  Day,  9  C.  &  P.  722  ;  R.  v.  Case,  1  Den.  C.C.  580  ;  R.  v.  Nichoh 
R.  &  R.  130.) 


CRIMINAL  REPORTS,  1860—1907. 


85 


Pring,  in  reply.     There  might  be  such  submission  as  implies         Reoina  «. 

consent,  and  the  circumstances  pointed  to  that  having  been  its  

character  in  this  case. 

Cockle  C.J.  :  It  is  no  doubt  competent  for  us  to  send  back  Cockle  C.J. 
'the  case  to  be  amended,  a  proceeding  which  we  should  adopt  in 
any  case  in  which  we  thought  it  essential  to  the  ends  of  justice  ; 
but  here  the  substantial  question  is,  whether  there  was  any 
evidence  to  go  to  the  jury,  and,  as  on  that  substantial  point 
we  are  against  the  prisoner,  we  do  not  think  it  necessary  to  send 
the  case  back  for  amendment.  Still  less  do  we  think  it  necessary 
to  criticise  an  isolated  passage  in  the  summing  up,  which,  regarded 
in  connection  with  the  whole  of  the  Judge's  observations,  or 
with  the  whole  proceedings  of  the  trial,  might  bear  a  different 
interpretation  to  that  which,  at  the  first  glance,  it  seems  to  bear. 
We  prefer  looking  at  the  points  stated  in  the  case  for  our  con- 
sideration, and  confining  ourselves  to  the  questions  raised  by 
those  points.  The  learned  Judge  was  called  upon  to  withdraw 
the  case  from  the  jury,  which  he  refused,  and,  we  think,  quite 
rightly  refused  to  do.  The  specific  grounds  of  objection  to  the 
Judge's  direction  which  followed  were  three  in  number — (1)  That 
the  learned  Judge  should  have  directed  an  acquittal  on  the  ground 
that  there  was  no  evidence  that  the  assault  was  committed 
against  the  consent  of  Jane  Howe.  However  valid  such  objection 
might  be  in  the  ordinary  run  of  cases,  yet  here  we  must  remember 
that  there  was  evidence,  with  which  it  was  for  the  jury  to  deal, 
that  the  assaulted  woman  was  a  being  incapable  of  giving  consent, 
and  consequently  the  direction  which  the  advocate  for  the  prisoner 
called  upon  the  learned  Judge  to  give  was  something  equivalent 
to  this — that  if  the  act  was  done  against  her  consent,  or  that 
if  she  was  a  person  incapable  of  consenting,  and  that  this  was 
an  indecent,  forcible,  and  wrongful  act  done  upon  her  without 
consent,  then  the  jury  might  convict.  What  the  learned  Judge 
was  called  upon  to  do  was  to  regard  the  first  branch  of  this 
alternative,  and  to  disregard  the  latter  altogether.  Consequently, 
we  think  that  in  this  particular  case,  in  which  there  was  evidence 
of  incapacity  to  consent  had  the  Judge  simply  directed  as  he 
was  called  upon  to  do,  the  jury  would  have  been  thereby  misled 
and  the  ends  of  justice  would  not  have  been  advanced.  The 
second  point  was  that  he  had  omitted  to  direct  the  jury  that 
Jane  Howe  was  a  competent  witness,  and  ought  to  have  been 
produced  by  the  Crown  to  negative  the  presumption  of  consent. 
Obviously  here  we  think  there  was  no  duty  incumbent  upon  the 


QUEENSLAND  JUSTICE   OF   THE    PEACE. 


Begina  v. 
hoskinos. 

Cockle  C.J. 


Lutwyche  J 


Judge  to  give  any  such  direction  to  the  jury.  The  caUing  or 
non-calling  of  a  witness  either  on  behalf  of  the  Crown  or  the 
prisoner  is  a  matter  for  observation  only.  There  is  the  point 
that  the  learned  Judge  ought  to  have  directed  the  jury  that  they 
must  be  satisfied  that  the  assault  was  committed  against  the 
consent  of  Jane  Howe.  This  would  have  been  a  very  proper 
call  to  make  upon  the  Judge  had  there  been  no  evidence  to  show 
she  was  incapable  of  giving  consent.  With  regard  to  the  three 
points  reserved  for  our  consideration,  I  think  we  must  determine 
them  against  the  prisoner.  We  think  the  learned  Judge  was 
right  under  the  pecuhar  circumstances  of  the  case  in  refusing  to 
withdraw  the  case  from  the  jury  on  the  point  raised  by  the 
defendant's  advocate.  He  was  also  right,  in  our  opinion,  in 
refusing  to  direct  an  acquittal  on  the  ground  that  there  was 
no  evidence  that  the  assault  was  committed  against  the  consent 
of  Jane  Howe.  If  she  were  incapable  of  giving  consent,  there 
was,  in  our  opinion,  a  wrongful,  forcible,  and  indecent  act  com- 
mitted against  her.  I  am  therefore  of  opinion  that  the  conviction 
ought  to  be   affirmed. 

Lutwyche  J.  :  I  am  of  the  same  opinion.  With  reference  to 
the  second  direction,  it  has  not  been  argued  by  the  learned 
counsel  for  the  prisoner,  but  I,  nevertheless,  think  it  right  to 
express  a  strong  opinion,  that  the  learned  Judge  acted  perfectly 
right  in  not  directing  the  jury  that  Jane  Howe  was  a  competent 
witness,  and  ought  to  have  been  called  by  the  Crown  to  rebut 
the  presumption  of  consent.  I  can  easily  understand  the  reason 
that  induced  the  learned  counsel,  who  conducted  the  prosecution 
on  behalf  of  the  Crown,  to  abstain  from  calling  her.  He  might 
have  thought  that  it  would  imperil  the  case  and  defeat  the  ends 
of  justice,  and  knowing,  as  he  did,  that  it  laid  him  open  to  obser- 
vation on  the  part  of  the  advocate  of  the  prisoner,  and  also  to 
observation,  but  observation  only,  on  the  part  of  the  learned  _ 
Judge,  I  think  he  exercised  a  very  wise  discretion  in  abstaining 
from  calKng  her  as  a  witness.  I  also  think  that  the  learned 
Judge  acted  perfectly  right  in  not  directing  the  jury  that  she 
ought  to  have  been  called  to  negative  the  presumption  of  consent, 
for  such  presumption  did  not  arise  upon  the  evidence,  if,  as  the 
case  went  to  show,  she  was  incapable  of  consenting.  I  believe 
that  in  ordinary  cases  evidence  of  want  of  consent  ought  to  be 
given  ;  but  where  it  is  shown  that  the  person  assaulted  has  no 
will  to  exercise,  and  is,  therefore,  incapable  of  giving  consent, 
then  I  think  it  is  quite  sufficient  to  leave  the  case  to  the  jury 


CRIMINAL  REPORTS,   1860-1907. 


87 


upon  that  evidence.  That  view  has  certainly  been  upheld  in 
all  the  cases  quoted,  except  in  the  case  of  R.  v.  Loch,  in  which 
Mr.  Justice  Brett  rather  qualified  it.  We  say  there  was  evidence 
to  show  the  incapacity  to  consent,  and  that  might,  therefore, 
go  to  the  jury  as  evidence  of  the  act  of  assault.  That  appears  to 
me  to  be  the  true  distinction,  and  reconciles  all  the  cases  which 
have  been  brought  before  the  Court.  I  also  think  that  the 
conviction  ought  to  be  confirmed. 


Eeoina  v. 
hoskinos. 

Lutwyohe  J. 


[In  Banco.] 

LONG  V.  RAWLINS. 
[4  S.C.R.  86.] 
Assault — Right  to  enter  a  church — Public  worship — Trespass. 

A  person  claiming  to  be  a  member  of  the  Baptist  Church  wag  prevented  from 
entering  the  church  on  a  Sunday  by  one  L.,  acting  under  instructions.  A  majority 
of  the  Bench  found  L.  guilty  of  assault,  fined  him,  and  placed  on  record  their 
opinion  that  the  plaintiff,  as  one  of  the  public,  had  a  right  to  enter  the  church  in 
question. 

Held,  without  deciding  whether  the  complainant  had  a  right  to  enter  the  church, 
that  there  was  evidence  to  support  the  conviction. 

Semble,  that  the  question  whether  a  member  of  the  public  has  a  right  to  enter  a 
church  for  worship  depends  upon  the  rules  of  the  church  and  its  trust  deed. 

If  a  man  be  a  trespasser,  he  can  be  sued  for  trespass  in  a  court  of  competent 
jurisdiction.     He  should  receive  notice  to  leave  before  he  is  ejected.* 

Motion  to  make  absolute  an  order  nisi  calling  upon  F.  Rawlins, 
Police  Magistrate,  and  other  Justices  of  the  Peace,  and  Wilham 
Langley,  to  show  cause  why  the  conviction  against  John  Long  for 
assault  should  not  be  quashed,  on  the  ground  that  the  opinion  and 
decision  of  the  majority  of  the  Bench,  and  the  conviction  founded 
thereon,  was  erroneous  and  contrary  to  law. 

The  complainant,  WiUiam  Langley,  summoned  John  Long  for  an 
assault,  in  an  attempt  to  prevent  his  entrance  to  the  Wharf  Street 
Baptist  Church.  Langley,  in  his  evidence,  stated  that  he  was  a 
member  of  the  Baptist  Church.  On  Sunday,  the  26th  of  April,  as 
he  was  walking  up  from  the  entrance  gate  to  the  building,  the 
defendant  came  to  him,  and,  in  a  most  ferocious  manner,  laid 
hold  of  him,  saying,  "  Did  I  not  tell  you  not  to  come  in  here  ?  " 


1874. 
6th  August. 

Cockle  C.J. 
Lilley  J. 
Sheppard  J. 


*See  Criminal  Code,  s.  207. 


88  QUEENSLAND   JUSTICE    OP   THE    PEACE. 

Long  v.  RiWLiNs.  flg  did  not  actually  strike  complainant,  but  began  pulling  and 
tearing  his  clothes.  The  complainant  offered  no  resistance, 
and  did  not  retaliate  in  any  way.  Whilst  he  was  adjusting  his 
clothing  the  defendant  went  on  very  violently,  saying  that  he 
would  murder  the  complainant  but  for  the  people  about.  He 
gave  no  reason  for  his  conduct.  In  cross-examination  the 
complainant  admitted  that  he  had  been  informed  by  letter  that 
he  had  ceased  to  be  a  member  of  the  church,  and  three  Sundays 
before  that  he  was  forbidden  to  go  into  the  church.  The  violence 
arose  out  of  the  assertion  by  him  of  his  right  to  enter  the  church. 

James  Swan,  a  senior  deacon  and  one  of  the  trustees,  swore 
that  the  doors  of  the  church  were  thrown  open  on  Sundays  for 
public  worship,  but  could  be  closed  if  the  church  chose.  They 
were  thrown  open  to  the  members  in  particular,  but  also  to  the 
public  if  they  behaved  themselves.  There  were  no  pew  rents  or 
registered  sittings  in  the  church,  and  the  seats  were  in  a  manner 
free.  The  defendant  was  stationed  at  the  gate  by  the  authority 
of  the  church.  A  meeting  was  held,  at  which  it  was  decided 
to  keep  out  the  complainant  as  a  disturber.  It  was  necessary 
to  keep  him  out  for  the  sake  of  common  decency  and  propriety, 
as  his  presence  completely  obstructed  pubhc  worship,  and  inter- 
fered with  the  ceremony  carried  out  by  the  pastor. 

WilUam  Moore,  another  trustee  of  the  church,  swore  that  he 
would  not  interfere  with  anybody  going  into  church  to  attend 
public  worship,  and  if  a  person  were  expelled  the  society,  he 
would  not  be  interfered  with  attending  the  congregation  meeting  ; 
but,  if  a  person  misbehaved  himself  whilst  there,  he  would  have 
him  put  out.  Henry  George  Cray,  one  of  the  deacons,  swore 
that  he  had  noticed,  on  several  occasions,  the  complainant's 
conduct  to  be  disorderly  in  the  church.  He  was  pertinaciously  so, 
and  in  defiance  of  remonstrance. 

The  majority  of  the  Bench  decided  that  the  complainant  had 
a  right,  as  one  of  the  public,  to  enter  the  church  in  question,  and 
fined  the  defendant  £2  and  costs,  or  in  default  seven  days'  im- 
prisonment. The  Police  Magistrate  and  one  of  the  Justices 
dissented. 

Griffith  A.G.  and  Pring  Q.C.  moved  the  rule  absolute. 

Blake  Q.C.  and  Harding  for  Langley  showed  cause.  The  com- 
plainant had  a  perfect  right,  as  one  of  the  public,  to  enter  the 
church,  even  if  he  was  not  a  member.  There  was  evidence  that 
other  persons  could  go  to  the  church,  and  nothing  had  to  be  done 
previously  to  entitle  them  to  admission.     If  Langley  misconducted 


CRIMINAL  REPORTS,   1860-1907.  89 

himself  in  the  building,  there  was  power  to  remove  him.  [Lillby  ^°^'^  "•  Rawlins. 
J.  By  the  trust  deed  the  church  is  apparently  limited  to  a  par- 
ticular society,  now  and  hereafter  assembling  therein.  It  appears 
to  me  the  question  of  complainant's  right  of  entrance  does  not 
arise.  This  is  a  conviction  for  assault,  and  we  have  to  say  if 
there  was  sufficient  evidence  to  sustain  it.  There  was  nothing 
to  show  Langley  meant  to  interrupt.]  Williams  v.  Glenister 
{2  B.  &  C.  699,  4  D.  &  R.  217)  ;  Polkinhorn  v.  Wright  (8  Q.B. 
197  (206)  ;  Byerly  v.  Windus  (5  B.  &  C.  1)  ;  Mainwaring  v.  Giles 
(5  B.  &  A.  356)  ;  Lang  v.  Purves  (8  Jur.  (N.S.)  523,  10  W.R. 
468,  15  Moo.  B.C.  89)  ;  Wood  v.  Leadhitter  (13  M.  &  W.  838)  ; 
and  Detcham  v.  Bond  (3  Camp.  524)  were  cited. 

Griffith  A.G.  :  If  there  was  no  right  on  the  part  of  Langley  to 
enter,  there  was  no  evidence  to  show  that  any  excess  of  violence 
had  been  used  in  ejecting  him. 

Cockle  C.J.  :  Some  questions  of  importance  were  probably  Cockle  C.J. 
intended  to  be  raised,  but  are  not  raised  by  this  order  nisi,  which 
seeks  a  prohibition  on  the  ground  that  the  opinion  and  decision 
of  the  majority  of  the  Bench,  and  the  conviction  founded  thereon, 
was  erroneous  and  contrary  to  law.  Now,  I  think  that  this 
Court  ought  not  to  disturb  a  decision  simply  on  the  suggestion 
that  it  had  proceeded  on  wrong  grounds.  So  far  as  I  understand 
the  entry  of  the  proceedings,  the  opinion  and  decision  not  only 
of  the  majority  of  the  Bench,  but  of  the  whole  Bench,  was  that 
an  assault  had  been  committed,  and  that  the  conviction  was 
founded  thereon.  I  can  hardly  say  that  the  conviction  was 
erroneous  and  contrary  to  law,  because,  whether  Langley  was 
or  was  not  a  trespasser  at  the  time  of  the  committal  of  the 
alleged  assault  and  battery,  still  there  is  evidence  which  the 
magistrates  may  have  believed,  and  on  which  they  may  have 
acted,  that  more  violence  was  used  than  the  law  would  justify 
on  such  an  occasion.  Moreover,  it  does  not  appear  by  necessary 
implication  that  the  conviction  was  founded  upon  this  opinion, 
of  which  so  much  use  has  been  made  in  the  course  of  the  case. 
The  entry  is  :  "A  majority  of  the  Bench  are  of  opinion  that  the 
plaintiff  had  a  right,  as  one  of  the  pubhc,  to  enter  the  church  in 
question."  The  reason  for  the  insertion  of  these  words — which 
appear  to  have  been  put  in  on  the  suggestion  of  the  learned 
counsel  for  the  defendant,  the  plaintiff  not  being  represented  by 
counsel — might  have  been  as  suggested  by  my  brother  Lilley, 
for  sake  of  peace,  or  with  the  object  of  promoting  an  understanding 
between  the  parties,  or  with  the  view  of  explaining  why  a  merely 


90 


QUEENSLAND   JUSTICE    OF  THE    PEACE. 


Long  v.  Bawlins.  nominal  penalty  was  not  inflicted.  That  it  was  fixed  at  40s, 
Cockle  C.J.  was  because  they  believed  there  was  an  infraction  of  a  substantial 
right.  But  it  was  a  question  which  did  not  come  before  the 
Court  in  a  way  enabling  us  to  answer,  and  it  would  be  going  too 
far  for  us  to  say  that  the  decision  of  the  Bench  supported  by 
evidence  should  be  disturbed  because  the  magistrates  had  put 
an  opinion  on  the  record  which  they  could  not  say  was  purely  law, 
or  one  of  mixed  law  and  fact.  For  these  reasons  I  think  the 
order  must  be  discharged. 

Lilley  J.  LiLLEY  J.  :   I  agree  with  the  judgment  which  the  learned  Chief 

Justice  has  dehvered  that  this  order  must  be  discharged,  and  I 
think  also  with  costs.  We  have  nothing  before  us  to  enable  us  to 
come  to  the  determination  that  this  opinion  was  the  sole  ground 
for  the  magistrate's  decision.  Neither  do  I  think  have  we 
materials  before  us,  even  if  they  were  so,  to  enable  us  to  say  that 
their  decision  was  actually  wrong.  There  was  some  evidence  from 
which  the  Justices  might  infer — the  evidence  of  Messrs.  Moore 
and  Swan — that  the  rules  of  the  society,  for  whose  benefit  this 
trust  deed  was  executed,  entitled  the  public,  under  certain, 
conditions,  to  enter  that  building  for  public  worship.  They 
might,  therefore,  have  come  to  that  conclusion.  It  is  impossible 
for  us  to  say  whether  they  were  right  or  wrong  on  the  materials 
before  us.  It  is,  moreover,  wholly  immaterial  in  this  matter. 
I  will  assume  that  the  chapel  being  opened  an  invitation  is 
given  to  the  general  public  to  enter  and  worship.  I  will  asume, 
further,  that  they  have  power  to  say  to  any  one  individual  in  the 
community,  "  All  others  may  enter,  but  you  are  excluded  from 
that  invitation."  Yet,  if  a  man  presents  himself,  as  Langley  did, 
is  there  a  right  to  seize  him,  even  if  it  is  admitted  that  he  was  a 
trespasser,  and  by  threat  and  assault  drive  him  back.  I  certainly 
think  not.  I  think  we  must  hold,  if  it  were  only  for  the  preserva- 
tion of  the  public  peace,  that  a  warning  must  be  given.  For  all 
Long  knew,  Langley  might  have  been  going  on  an  errand  of 
peace,  because  it  was  unknown  to  him  that  he  was  simply 
asserting  his  right  to  enter.  It  would  be  a  most  dangerous  thing 
to  hold  that  a  man  can  assault  a  trespasser  without  previously 
telling  him  to  withdraw.  My  opinion  is,  on  the  evidence  before 
us,  that  the  conviction  was  right.  No  doubt  the  parties  wish 
this  question  determined  upon  which  the  magistrates  gave  an 
opinion,  namely,  whether  one  of  the  public  has  a  right  to  go  into 
a  church  for  the  purpose  of  worship  ;  but  that  depends  to  a  great 
extent  upon  the  rules  of  the  society  and  the  trust  deed,  which 


CRIMINAL  EEPORTS,  1860-1907.  91 

do  not  appear  before  us.     Neither  do  I  think  that  this  is  the  Lono  v.  Bawmnb. 
proper  way  of  bringing  the  point  forward  for  a  decision.     If  a         Lilley  J. 
man  be  a  trespasser  let  him  be  sued  for  trespass,  and   let  the 
question  be  determined  by  a  Court  of  competent  jurisdiction. 

Sheppard  J.  ;  I  also  agree  with  the  decision.  With  regard  Sheppard  J. 
to  the  right  of  the  public  to  enter  a  church,  the  Magistrates  have 
given  an  opinion  which  probably  they  would  have  been  glad  to 
have  decided  by  this  Court,  but  it  is  not  necessary  for  the  decision 
of  this  case,  and  it  does  not  seem  to  me  that  we  are  called  upon 
to  give  an  opinion  on  a  point  on  which  a  good  deal  can  be  said 
for  and  against,  and  which  is  one  of  very  great  importance. 
As  to  the  costs,  I  behave  Lord  Wensleydale's  dictum  is  the 
correct  one,  that  costs  must  not  be  imposed  either  as  a  punish- 
ment or  a  penalty,  but  must  follow  as  a  consequence  of  unsuccessful 
litigation. 

Order  discharged  with  costs. 

SoHcitor  for   complainant :     T.    Bunton. 

Sohcitors  for  appellant :    Macalister  cfc  Mein. 


[In  Insolvency.] 
In  re  LONG. 


[4  S.C.R.  120.— Note.— Sections  208  and  216  ol  38  Vic.,  No.  5,  are  repealed,  see  now 
ss.  530  and  698  o(  Ciimiaal  Code.] 

The  Insolvency  Act  of  1874  (38  Vic,  No.  5),  ss.  114,  208  (2),  216—  1875. 

Committal  of  debtor  for  trial  after  examination  under  s.  114 —        28th  May. 
Transfer  with  intent  to  defraud.  Lilley  J. 

Before  exercising  tlie  power  of  committal  of  an  insolvent  under  s.  216  of  The 
Insolvency  Act  of  1874,  the  Court  must  be  satisfied  that  such  a  case  has  been  made 
out  as  would,  if  not  broken  down  or  answered  by  counter-evidence,  justify  a 
probability  of  the  insolvent's  conviction  by  a  jury. 

Motion  by  the  oflScial  trustee  for  the  committal  of  John  Long , 
an  insolvent,  for  trial  for  an  offence  against  The  Insolvency  Act 
of  1874. 

At  an  examination  of  the  insolvent  under  s.  114  he  stated  that 
he  had  transferred  certain  land  a  few  days  before  his  adjudication, 
having  purchased  the  property  with  his  sister's  money.  The 
insolvent's  brother  had  since,  in  the  insolvent's  presence,  handed 


92  QUEENSLAND    JU&TICE   OF   THE    PEACE. 

In  re  LoNo.       the  transfer  to  the  official  trustee.     All  the  other  necessary  facts 
appear  in  the  judgment. 

Pring  Q.C.,  for  the  official  trustee,  appUed  under  s.  216  for  the 
committal  of  the  insolvent  for  trial  for  an  offence  against  The 
Insolvency  Act  of  1874.  He  referred  to  ss.  208  (2)  and  216  of 
the  Act  38  Vic,  No.  5. 

Thynne  for  the  insolvent. 

Lilley  J.  LiLLEY  J.  :   I  think  the  power  I  am  called  upon  to  exercise  is  a 

very  summary  one.  Were  I  at  once  to  commit  the  insolvent  for 
trial,  he  would,  under  this  peculiarly-worded  section,  go  from 
this  jurisdiction  under  the  disadvantage  of  a  preliminary  judgment, 
because  the  section  states  that  should  it  appear  to  the  Court  that 
the  insolvent  is  guilty  of  the  offence.  I  take  it  that  what  ought 
to  have  been  the  wording  of  the  statute — and  what  no  doubt  was 
the  intention  of  the  Legislature — is  that  the  Court  should  have 
the  power  to  commit  the  insolvent  if  a  prima  facie  case  shall  appear 
to  have  been  made  out  against  him  after  his  examination.  I  shall, 
therefore,  in  the  first  instance,  before  I  can  exercise  such  a  power, 
have  to  be  satisfied  that  such  a  case  has  been  made  out  as  would, 
if  not  broken  down  or  answered  by  counter-evidence,  justify 
a  probabiUty  of  the  insolvent's  conviction  by  a  jury.  The  only 
portion  of  the  case  which  it  seems  to  me  has  been  proved  against 
the  insolvent  is  the  purchase  and  conveyance  to  his  brother, 
Daniel  Long,  of  a  cottage  at  Warwick.  I  now  have  only  the 
insolvent's  own  statement.  Whatever  may  be  the  truth  or 
falsehood  of  that  statement  I  have  not  to  consider,  but  what  will 
be  the  probability  of  a  jury  convicting  upon  it.  In  the  first 
place  the  insolvent  said  he  bought  the  property  with  the  money 
of  his  sister.  The  question  arose  whether  he  was  acting  for  her 
or  her  husband,  if  she  were  married  ;  but  upon  this  subject  the 
Court  is  in  the  dark.  It  was  said  that  the  allegation  concerning 
the  sister  was  false,  and  for  this  reason,  that  he  transferred  the 
property  to  his  brother  after  he  had  been  served  with  a  writ  by 
one  of  his  creditors.  That  as  it  stands,  if  supported  by  some 
other  evidence,  might  have  great  weight  with  a  jury.  Then 
there  is  the  circumstance  that  the  brother  has  in  his  presence 
surrendered  the  transfer  to  the  official  trustee.  I  must  say 
there  is  a  case  of  suspicion,  and  perhaps  there  is  sufficient  evidence 
to  justify  me  in  holding  him  to  bail  to  appear  before  a  Justice  of 
the  Peace,  a  course  which,  if  strongly  pressed,  I  will  follow.  At 
the  same  time  I  may  point  out,  if  any  additional  evidence  can  be 


CRIMINAL   EEPORTS,   1860-1907. 


9» 


obtained,  the  insolvent  can,  at  any  time,  be  summoned  before  a 
magistrate  to  answer  for  the  offence,  without  the  Court  now 
binding  him  over. 

Pring  Q.C.  :  1  will  not  press  for  the  insolvent  to  be  bound  over, 
as  I  am  not  quite  sure  whether  the  additional  evidence  can  be 
obtained. 

Solicitor  for   official  trustee  :     Wilson. 


In  re  Lono. 
LiUey  J. 


[In  Banco.] 

R.  V.  JIMMY.* 

[4  S.C.R.  130 ;   7  Q.L.J.  N.C.  106.— Note.— R.  v.  Gomez,  cited  in  footnote,  was 
reported  in  5  S.C.R.  189,  and  is  reprinted  herein,  post.] 

Criminal  Law — Piracy — Jurisdiction — Territorial  waters — 7   Wm. 
IV.    and  1  Vic,  c.  88,  s.  2—12  and   13  Vic,  c  96,  s.  3. 

A  prisoner  was  charged  with  piracy  on  «,  vessel  lying  within  a  line  drawn  from 
one  headland  to  another  on  the  coast  of  Queensland,  and  between  the  mainland 
and  an  island  which  had  been  annexed  by  that  colony  by  proclamation. 

Hdd,  that  the  locus  in  quo  of  the  alleged  offence  was  within  the  territorial  juris  ■ 
diction  of  the  colony,  and  therefore  subject  to  the  municipal  law  of  the  colony,  and 
that  no  act  of  piracy  could  be  there  committed. 

Crown  Case  Reserved  by  Sheppard  J. 

Jimmy,  an  aboriginal,  was  tried  at  Townsville,  on  May  26th, 
before  Sheppard  J.  The  first  count  of  the  information  charged 
the  prisoner  with  having,  on  9th  June,  1874,  with  force  and  arms, 
and  upon  the  high  seas,  and  on  board  the  schooner  "  Albert 
Edward,"  then  lying  in  Challenger  Bay,  distant  about  three 
leagues  from  the  coast  of  the  colony,  piratically,  unlawfully, 
maliciously  assaulted  and  wounded,  with  intent  to  murder, 
Robert  Mackay  and  Donald  Henderson,  for  the  purpose  of  enabling 
him  to  steal  the  said  vessel  and  her  cargo. 

The  information  was  laid  under  s.  2  of  7  Wm.  IV.  and  1  Vic, 
0.  88  (Pain  &  Woolcock's  Statutes,  3138).  The  Crown  Prosecutor, 
at  the  instance  of  the  Judge,  elected  to  proceed  in  respect  of  the 
wounding  of  Henderson.  It  appeared  that  the  schooner,  of 
which  Mackay  was  master,  was  sailing  under  the  British  flag, 
and  at  the  time  of  the  commission  of  the  offence  alleged  was  lying 


1875. 
i!4th  September. 

Cockle  C.J. 
Lutwyche  J. 
Lilley  J. 
Sheppard  J. 


*E.  V.  Gomez  (reported  in  Brisbane  Courier),  1st  June,  1880. 

Code,  ss.  81-82. 


But  see  Criminal 


94 


QUEENSLAND   JUSTICE    OF  THE    PEACE. 


B.  V.  JiMMT.  jn  Challenger  Bay,  off  Palm  Island,  inside  an  imaginary  line 
drawn  from  one  headland  of  the  bay  to  another,  and  distant  from 
the  island  from  a  quarter  to  half-a-mile.  There  were  from  three 
to  four  fathoms  of  water  at  the  spot  where  the  ship  was  lying, 
and  it  was  beyond  low  water  mark.  There  was  also  another 
island  between  Palm  Island  and  the  mainland,  with  a  passage 
between,  through  which  any  vessel  could  go.  The  vessel  waB 
lying  on  the  mainland  side  of  the  island,  and  the  mainland  could 
be  seen  from  her  deck.  A  proclamation  in  the  Government 
Gazette,  annexing  the  islands  within  sixty  miles  of  the  coast,  was 
put  in  evidence  ;  and  the  Judge  directed  the  jury  that,  although 
the  proclamation  had  the  effect  of  making  the  island  in  question 
a  portion  of  the  Colony  of  Queensland,  it  did  not  so  constitute 
it  a  part  of  the  colony  in  the  sense  that,  within  a  line  drawn  from 
one  headland  to  another  of  Challenger  Bay,  the  crime  of  piracy 
could  not  be  committed,  and  he  directed  the  jury  that  the  vessel 
■was  in  such  a  position  that,  in  point  of  law,  the  crime  of  piracy 
could  be  committed  :  but  entertaining  some  doubts  as  to  whether 
in  point  of  law,  the  proclamation  had  not  the  effect  of  rendering 
Palm  Island  a  portion  of  the  "  district  or  country  "  from  which 
it  was  divided  by  the  sea,  and  whether  the  ship  was  not  within 
the  "  body  "  of  the  country  or  district,  the  Judge  reserved  for  the 
consideration  of  the  Judges  in  Banco  the  question  whether, 
on  the  evidence,  the  ship  was  in  such  a  situation  that,  in  point  of 
law,  the  crime  of  piracy  could  be  committed.  The  prisoner 
was  found  guilty,  and  sentenced  to  death. 

Griffith  A.G.,  for  the  Crown,  referred  to  1  RusseU  on  Crimes  (1865 
Ed.,  p.  153),  R.  V.  Cunningham  (Bell  C.C.  72),  R.  v.  Bruce  (K.  &  R. 
243),  R.  V.  Anderson  (L.R.  1  C.C.R.  161),  R.  v.  Mannion  (2  Cox 
C.C.  158),  R.  V.  Curling  (R.  &  R.  123),  and  the  statutes  8  Geo.  I., 
c.  24,  s.  1,  18  Geo.  II.,  c.  30,  39  Geo.  III.,  e.  37,  46  Geo.  III.,  c.  54, 
12  and  13  Vic,  c.  96,  s.  3  ;  7  Wm.  IV.  and  1  Vic,  c  88  ;  Bacon's 
Abridgement  (Piracy),  and  Comyn's  Digest  (Admiralty)  E.  3,  14). 

Blake  Q.C.  for  the  prisoner. 

Cockle  C.J.  Cockle  C.J.  :   I  think  this  conviction  cannot  be  upheld  without 

going  in  the  face  of  a  statement  made  in  Comyn,  on  the  authority 
of  Bulstrode.  It  is  there  stated  that  "it  is  not  piracy  if  the 
attempt  was  made  within  a  creek,  port  ....  for  that 
would  be  a  felony  triable  at  common  law."  Now,  tha  scene  of 
the  alleged  piracy  forms  part  of  this  colony — or,  at  any  rate 
was  -within  the  "  body  "  of  the  colony — for  the  island  in  question 


CRIMINAL   REPORTS,  1860-1907. 


95 


has  been  annexed  by  proclamation,  and  the  locus  in  quo  being 
within  a  Une  drawn  from  headland  to  headland  was  within  the 
jaws  of  the  land.  In  annexing  the  island,  this  country  must  be 
taken  to  have  thrown  over  that  island  the  protection  of  the 
common  law.  It  is  not  necessary  to  say  whether  the  jurisdiction 
of  the  Admiralty  will  or  will  not  be  excluded,  because  it  by  no 
means  follows  from  the  fact  that  there  is  a  concurrent  jurisdiction 
possessed  by  the  common  law  and  the  Admiralty,  that  the  offence 
set  out  here  is  necessarily  a  piracy.  There  might  be  a  concurrency 
of  jurisdiction  by  which  the  Admiralty  could  deal  with  alleged 
offences  occurring  under  the  cognisance  of  the  common  law, 
but  it  is  not  necessarily  to  be  imphed  that  when  jurisdiction 
is  concurrent,  that  means  that  the  Admiralty  is  to  deal  with  the 
offence  in  one  way,  and  the  common  law  in  another,  and  by  such 
a  course  of  proceedings  arrive  at  different  results.  Therefore, 
as  in  the  present  case  the  locus  in  quo  is  within  the  municipal 
law  of  the  country,  I  am  of  opinion  that  the  prisoner  is  innocent, 
at  aU  events  from  piracy,  and  consequently  the  conviction  must 
be  quashed. 

LuTWYCHE,  LiLLEY  and  Sheppabd  JJ.  concurred. 

Conviction  quashed. 
Solicitor  for  prisoner  :    —  Norris. 


R.  V.  Jimmy. 
Cookie  C.J. 


[In  Banco.] 

R.  V.  KING. 

[4  S.C.R.  144;  1  Q.Ii.R.  Pt.  I.,  p.  73.— Note.— S.  207  of  38  Vic,  No.  5,  is  repealed, 
see  now  s.  519  of  Criminal  Code  to  like  effect.] 

Insolvency  Act  of  1874  (38  Vic,  No.  5),  ss.  43,  70,  115,  207,  r.  38— 
Debtor'' s  petition — Verification  of  by  affidavit — Examination  of 
debtor — Answers  to  questions — Admissibility  of  answers  on 
subsequent  trial  of  debtor  on  criminal  charge. 

A  debtor's  petition  for  adjudication  under  s.  43  of  the  Act  38  Vic,  No.  5,  need 
not  be  verified  by  affidavit. 

The  provision  in  s.  115  of  The  Insolvency  Act  of  1874  "  that  no  question  put  to 
any  insolvent  on  any  examination  under  this  Act  shall  be  deemed  unlawful  by 
reason  only  that  the  answer  thereof  may  expose  him  to  punishment  in  respect  of 
some  one  or  more  acts  or  things  made  punishable  as  misdemeanors,"  does  not 
operate  to  render  inadmissible  on  a  subsequent  trial  of  the  insolvent  for  a  crime, 
statements  made  by  him  on  an  examination  under  s.  114  of  the  Act. 


1876. 

11th  and  14th 
Febritary. 

Cockle  O.J. 
Lutwyche  J, 
Lilley  J. 
Sheppard  J, 


96  QUEENSLAND   JUSTICE   OF  THE   PEACE. 

E.  V.  Kino.  Senible,  however,  that  an  insolvent  may  refuse  on  such  an  examination  to  answer 

any  question  which  may  expose  him  to  punishmeiit  on  a  criminal  charge. 

Ceown  Case  Rbseeved  by  Lutwyche  J.  on  the  trial  of 
John  Campbell  King  for  fraudulent  insolvency. 

The  prisoner  was  tried  before  Lutwyche  J.  on  a  charge  of 
fraudulent  insolvency  in  trying  to  leave  the  colony,  taking  with 
him  certain  property  which  should  have  been  divided  among  his 
creditors.  The  adjudication  of  the  insolvent  was  proved  by  the 
production  of  the  Gazette  containing  the  adjudication,  but  counsel 
for  the  prisoner  objected  to  proof  in  that  form,  and  also  to  the 
adjudication  itself,  as  having  been  made  upon  the  petition  of  the 
insolvent,  which  petition  was  not  verified  or  supported  by  affidavit 
as  required  by  r.  38  of  the  Insolvency  Rules.  Evidence  was 
tendered  of  admissions  made  by  the  prisoner  on  his  examination 
under  s.  114  of  the  Act,  and  objection  was  taken  by  counsel  for  the 
prisoner  to  this  evidence,  he  relying  upon  s.  115  of  the  Act, 
Lutwyche  J.  admitted  the  evidence,  but  stated  a  case,  reserving 
for  consideration  of  the  Court  in  Banco  the  questions  of  the 
admissibility  of  such  evidence  and  of  the  proof  of  and  validity  of 
the  adjudication  of  the  prisoner  as  an  insolvent. 

Blake  Q.C.  and  Real,  for  the  prisoner,  withdrew  the  objection 
that  the  orders  published  in  the  Government  Gazette  were  not 
conclusive  evidence  of  adjudication  on  the  authority  of  R.  v. 
Levi  (L.  &  C.  597),  and  admitted  that  the  question  related  to 
property. 

Griffith  A.G.  and  Beor,  for  the  Crown,  cited  Ex  parte  Cossens 
(Buck.  531),  Ex  parte  Kirhy  (Mon.  &  McAr.  212),  R.  v.  Shggdt 
(Dears.  656),  R.  v.  Coote  (L.R.  4  P.C.  599),  R.  v.  Cross  (Dears. 
&  B.  68). 

Blahe  Q.C,  in  reply.     Section  115  limits  s.  114. 
C.A.V. 

February  14,  1876. 
Cockle  C.J.  Cockle  C.J. :  In  this  case,  the  prisoner  was  indicted  for  a  felony 

under  s.  207  of  the  Act,  and  an  adjudication  was  offered  in  evidence 
and  objected  to  on  the  grounds  that  the  petition  was  not  supported 
by  affidavit.  The  petition  was  a  debtor's  petition,  which,  under 
s.  43  of  the  Act,  may  serve  as  the  basis  of  an  adjudication  upon 
due  proof,  which  does  not,  as  I  understand  the  Act,  mean  neces- 
sarily proof  by  affidavit.  The  Court  may  be  satisfied  by  other 
matter — by  attestation,  for  instance.  It  has  been  said  that  under 
r.  38,  it  is  necessary  that  there  should  be  an  affidavit ;   but  that 


CRIMINAL   REPORTS,   1860-1907.  97 

rule  does  not,  it  seems  to  me,  apply  where  there  has  been  a  pro-  ^'  - '•^™°- 
vision  made  in  the  Act  itself  for  proceedings  on  petition,  or  even  Cockle  C  J 
if  it  did  apply,  it  would  possibly  be  competent  for  the  Judge 
exercising  the  discretion  given  him  by  the  rule  to  be  satisfied 
without  such  proof  ;  and  moreover  s.  70  of  The  Insolvency  Act, 
by  providing  that  the  Gazette  shall  be  conclusive  evidence  of  the 
adjudication,  seems  to  show  the  inchnation  of  the  Legislature 
to  destroy  any  such  objection  as  that  made  to  the  admissibility 
of  the  adjudication.  I  think,  therefore,  there  is  nothing  whatever 
in  this  point,  and  I  now  proceed  to  the  objection  raised  under  s. 
115  of  the  Act.  Now,  as  far  as  I  am  concerned,  I  have  the 
greatest  difficulty  in  assigning  any  meaning  to  this  section,  or 
to  conjecture  what  could  have  been  its  purpose.  Interpreted 
it  cannot  be  by  the  marginal  note  ;  but  even  between  section 
and  note  there  seems  to  be  a  conflict.  For  the  margination 
treats  the  Legislature  as  referring  to  answers  and  to  the  nature  of 
answers,  whether  criminating  or  not,  while  at  the  first  glance  the 
section  seems  to  refer  to  questions,  and  provides  that  certain  ques- 
tions shall  not  be  unlawful,  and  by  implication  that  certain  other 
questions  are  to  be.  "  No  question  put  to  any  insolvent  upon  any 
examination  under  this  Act  shall  be  deemed  to  be  unlawful,"  are 
words  which  at  first  sight  would  seem  to  imply  that  the  Legislature 
had  misconceived  the  Common  Law,  and  supposed  that  any  such 
question,  unless  it  be  put  to  an  insolvent  actually  upon  his  trial, 
and  put  judicially  by  the  Judge  from  the  Bench,  would  be  unlawful. 
As  I  understand  it,  the  Common  Law  is  not  that  such  a  question 
cannot  be  put,  but  simply  that  the  person  may  refuse  to  answer. 
Assuming  for  a  moment — which  I  do  not  assume,  and,  in  fact,  I 
think  the  assumption  ought  not  to  be  hastily  indulged  in — that  . 
this  clause  is  based  upon  misconception  of  the  Common  Law,  I 
think  it  would  be  extremely  dangerous  for  us  to  travel  into  the 
regions  of  conjecture,  as  we  should  were  we  to  pronounce  on  the 
effect  of  that  misconception.  It  has  been  contended  here  that 
the  omission  of  the  words  "  or  felonies  "  at  the  end  of  the  section 
shows  an  intention  on  the  part  of  the  Legislature  that  questions 
which  in  respect  to  misdemeanours  would  not  be  unlawful  would 
be  in  respect  to  felonies.  It  is  a  possible  interpretation  to 
put  on  the  Act,  but  it  is  not  perfectly  clear  to  me  why  a  contrast 
is  to  be  drawn  between  misdemeanours  and  felonies  at  Common 
Law  and  those  under  other  Acts.  It  is  more  probable  that  the 
words  should  have  been  omitted,  but  it  is  equally  probable 
that  it  was  intended  to  draw  a  distinction.     It  would  be  very 


98 


QUEENSLAND  JUSTICE   OP  THE   PEACE. 


U.  V.  King.       unsafe  indeed  to  base  a  judgment  upon  conjecture.     I  prefer, 
GoekleC.J.       therefore,   one   or  two   other  interpretations,   namely— in  using 
this  phrase,  the  Legislature  merely  meant  that  the  question  need 
not  be  answered,  not  to  deprive  the  Judges  or  parties  of  the 
opportunities  of  discovery  offered  by  putting  the  question,  but 
simply  that  an  unlawful  question  need  not  be  answered.     That, 
certainly,  would  seem  to  be  the  view  taken  by  the  Legislature  in 
the  22nd  section  of  7  Vic,  No.  19,  which  Mr.  Justice  Sheppard 
has  kindly  furnished  us   with,   and   which,   after  reciting  that 
"  if  any  insolvent  shall  refuse  to  answer  any  lawful  question," 
goes  on  to  enact  that  "  After  the  passing  of  this  Act  no  question 
shall  be  deemed  unlawful  by  reason  only  that  the  answer  might 
criminate  him."     Thus  fortified  with  the  expression  of  the  New 
South  Wales  Legislature,   of  which  this  colony  then  formed  a 
part,  I  see  less  difficulty  in  coming  to  the  conclusion  that  ho 
question  shall  be  deemed  unlawful  by  reason  only  that  the  answer 
may  expose  him  to  punishment,   has  reference  to  the  old  state 
of  the  law,  and  by  "  unlawful,"  the  Legislature  meant  questions 
to  which  an  answer  might  be  refused.     If  that  be  the  interpreta- 
tion, of  course  this  conviction  must  be  affirmed,  because  it  is 
expressly  stated  on  the  face  of  the  case  that  the  prisoner  did  not 
object  to  answer  the  questions  put  to  him.     I  may  add  that  it  has  . 
occurred  to  me  that  another  interpretation  may  be  put  on  these 
words,  that  they  may  have  crept  into  the  clause  this  way — that  the 
Legislature  had  intended  to  enact  that  certain  questions  should  be 
unlawful,  they  might  have  intended  that  a  question  intending  to 
convict  of  these  felonies  should  not  be  lawful.     If  that  be  so,  cer- 
tainly there  is  no  express  enactment  in  the  Act  that  any  particular 
question  shall  be  unlawful,  and  if  the  Legislature  have  carried 
out  that  part  of  their  intention,  it  is  only  by  impHcation  so 
remote  that  it  would  not  be  safe  to  base  any  arguments  upon  it. 
The  conviction  wiU  have  to  be  affirmed. 

Lutwyche  J.  LxJTWYCHE  J.  :  I  also  think  the  conviction  ought  to  be  affirmed. 

It  appears  to  me  that  there  is  no  weight  in  one  point  which  was 
argued  at  the  bar  on  Friday  last.  I  think  the  orders  of  adjudica- 
tion in  both  cases,  in  respect  of  King  and  Redmond,  and  in  respect 
of  Redmond,  were  both  good,  although  the  petitions  were  not 
verified  by  affidavit.  Rule  38  appears  to  me  to  apply  to  motions 
only,  and  the  absence  of  the  word  "  affidavit,"  when  the  words 
"  due  proof  "  are  used  in  the  43rd  section,  leads  me  to  tha 
conclusion  that  it  was  not  intended  to  require  an  affidavit  in  the 
case  of  a  debtor's  petition,  while  in  the  52nd  section  we  have 


CRIMINAL  REPORTS,   1860-1907.  99 

an  express  provision  that  the  creditor's  petition — then  being  ^-  *^™* 
Tinder  the  notice  of  the  Legislature — that  the  petition  of  the  Lntwyche  J. 
creditor  shall  be  verified  by  the  oath  of  the  petitioner. 

Then  with  regard  to  the  second  and  more  important  point  raised 
by  the  language  of  the  115th  section  of  the  Act,  I  agree  with  the 
■Chief  Justice  in  thinking  that  the  words  "  unlawful  question  " 
mean  a  question  that  need  not  be  answered  ;    and  that  being  so, 
if  the  question  is  put,  and  the  insolvent  decline  to  answer  it, 
and  is  nevertheless  compelled  to  answer,  I  take    it  that    in    a 
prosecution  for  felony  founded  upon  evidence  thus  extorted  from 
him,  he  might  possibly  successfully  object,  if  the  question  did  not 
relate  to  his  deaUngs  and  property.     I  think  it  would  be  extremely 
dangerous  to  hold  that  the  law  which  was  formerly  in  force,  and 
which  is  still  in  force,  with  regard  to  the  answers  given  by  the 
insolvent,   tending  to   criminate   himself,   when  his   dealings   or 
property  are  in  question,  should  be    so    altered  by  implication 
as  to  make  it  unlawful  to  put  a  question  which  might  expose  the 
insolvent  to  a  charge  of  felony.     Mr.  Justice  CressweU,  in  a  case 
that  came  before  him  in  the  Common  Pleas  (Wansey  v.  Perkins, 
7  Man.  &  Gr.  142),  said — "  It  was  a  safe  rule,  in  construing  Acts 
of  Parliament,  to  look  at  the  words  of  the  Act,  and  construe 
them  in  the  ordinary  meaning,  unless  such  a  construction  would 
lead    to    some    manifest    absurdity    or   injustice."     Now,    when 
words   are   plain,   and  their   construction  is   easy,   by  applying 
the  ordinary  sense  of  the  words  to  them,  that  should  be  done  ;  yet 
if  the  result  should  be  a  manifest  absurdity  or  injustice,  courts  are 
then  in  a  manner  compelled  to  give  them  a  different  construction. 
Surely,  if  by  impUcation  we  are  asked  to  do  something  which 
would  lead  to  both,  we  ought  to  be  very  cautious  how  to  adopt 
such  a  construction.     And  it  seems  to  me  that  it  would  be  mani- 
festly absurd  and  unjust  if  we  were  to  hold  that  a  person  might 
be  compelled  to  give  an  answer  that  would  expose  him  to  a 
prosecution  for  a  misdemeanour  under  this  Act,  while  he  was 
protected  from  giving  an  answer  which  would  subject  him  to  a 
prosecution  for  a  graver  offence.     It  would  be  holding  out  a 
sort  of  premium  to  criminals  to  sin  as  much  as  they  could,    and 
such  a  construction  would  certainly  be  unjust  to  the  men  who 
are  found  to  have  committed  acts  which  in  the  eyes  of  the  law 
are  of  lesser  magnitude.     After  all,  the  distinction  is,  perhaps, 
more  technical  than  substantial,  for  the  two  felonies  which  are 
mentioned  in  this  Act  seem  to  me  to  be  substantially  no  more 
contrary  to  morality  and  the  aims  of  pubhc  justice  than  many 


100  QUEENSLAND   JUSTICE   OF  THE    PEACE. 

R.  V.  King.  other  acts  which  are  enumerated  as  acts  of  misdemeanour  only, 
Lutwjche  J.  On  the  whole,  I  think,  wthout  striving  to  point  out  the  particular 
object  which  the  Legislature  had  in  view,  which  it  is  not  very 
easy  to  discern,  I  think  we  shall,  as  far  as  we  can  judge,  carry 
out  the  intention  of  the  Legislature  by  confining  the  operation 
of  the  section  to  the  words  which  appear  in  it. 

LilleyJ.  LiLLBY  J.  :    Upon  the  first  point  raised,  that  the  adjudication 

was  in  effect  bad,  because  the  petition  had  not  been  supported 
or  proved  by  affidavit,  I  have  come  to  the  same  conclusion  as 
the  Chief  Justice  and  Mr.  Justice  Lutwyche.  The  language  of 
the  section  is,  that  the  adjudication  shall  be  upon  due  proof, 
and  the  Judge,  who  is  the  Court  sitting  to  make  the  adjudication, 
is  to  exercise  a  judicial  function,  and  it  is  for  him  to  decide  whether 
the  evidence  amounts  to  due  proof,  or  to  that  sufficient  degree  of 
proof,  which  would  enable  him  to  make  the  adjudication.  Now, 
I  suppose  that  there  can  be  no  stronger  proof  than  a  man's  own 
admission  that  he  is  unable  to  meet  his  engagements  and  hable 
to  The  Insolvency  Act. 

But  then  it  is  said  that  the  judgment  of  the  Judge  is  to  be 
measured  by  r.  38,  that  the  rule  prescribes  that  the  proof  shall  be 
an  affidavit.  But  when  we  look  to  the  language  of  that  rule,  it  is 
very  doubtful,  in  the  face  of  s.  33,  which  requires  an  adjudication 
against  a  debtor  to  be  made  upon  petition,  whether  the  rule 
applies  at  all.  But  then,  if  we  admit  that  the  rule  does  apply, 
is  it  not  in  itself  a  sufficient  answer  to  the  objection  ?  Because 
there,  "  All  applications  to  the  Court  in  the  exercise  of  its  primary 
jurisdiction  by  virtue  of  the  Act,  shall  (unless  herein  or  in  the  Act 
otherwise  provided,  or  the  Court  shall  in  any  particular  case 
otherwise  permit)  be  by  way  of  motion  supported  by  affidavit." 

Well,  now,  if  the  judge  is  satisfied  and  makes  the  adjudication 
upon  a  petition  without  affidavit,  it  is  the  strongest  proof  that  he 
has  permitted  proof  of  another  kind  to  be  used — at  all  events, 
due  or  sufficient  proof.  Upon  that  point,  therefore,  I  think  the 
prisoner  can  have  no  advantage  from  the  objection. 

Then  I  come  to  the  graver  objection  founded  on  the  115th 
section  which  states  that  "  No  question  put  to  any  insolvent  on 
any  examination  under  this  Act  shall  be  deemed  unlawful  by 
reason  only  that  the  answer  thereto  may  expose  him  to  punishment 
in  respect  of  some  one  or  more  acts  or  things  by  this  Act  made 
punishable  as  misdemeanors."  I  do  not  understand  the  members 
of  the  Court  who  have  delivered  judgment  before  me  to  decide 
that  this  is  an  impHed  enactment,  that  any  question  put  to  an 


CRIMINAL  REPORTS,   1860-1907.     /o        \^\         \    \       101 


insolvent  in  his  examination  before  an  examining  C^urV  wliic&  Bi^j^^m. 
would  tend  to  prove  that  he  had  been  guilty  of  f elony%(ouJ(J  ^e^'s^^yfiilley  J. 
unlawful,  or  that  the  insolvent  could  refuse  to  answer  it. 
not  understand  the  members  of  the  Court  to  have  gone  so  far, 
and  I  think,  that  whether  the  question  tended  to  show  that  the 
insolvent  had  been  guilty  of  felony  or  misdemeanour,  he  is  bound 
under  this  statute  to  answer,  and  the  evidence  can  be  used  against 
him  either  for  felony  or  misdemeanour.  In  considering  this 
115th  section,  we  must  have  regard  to  the  state  of  the  law  before 
the  enactment,  or,  rather,  to  the  effects  of  the  other  portions  of' 
the  statute.  We  must  take  it  to  be  clear  law  since  the  Queen  v. 
Scott  (1  Dears.  &  B.  47,  25  L.J.  (M.C.)  128),  which  has  been  sanc- 
tioned by  our  highest  Court  of  Appeal — the  Privy  Council — that 
where  a  statute  requires  an  insolvent  to  answer  questions  touching 
his  trade  deahngs  and  property,  he  must  answer,  even  though  the 
answer  expose  him  to  a  prosecution  for  felony.  There  were  two 
rules  existing  at  the  time  this  enactment  was  passed.  The  first 
was  the  maxim  "  that  no  man  should  be  held  to  accuse  himself," 
and  "  that  he  should  not  be  bound  to  answer  any  question  to 
criminate  himself."  When  the  statute  required  him  to  answer 
touching  his  trade  and  dealings,  it  removed  that  privilege.  Then 
the  effect  of  the  case  of  the  Queen  v.  Scott  {swpra)  was,  not  to  go 
further,  to  hold  that  the  rule  of  the  law  of  evidence  was  also 
repealed — namely,  that  when  a  man  has  given  his  answer  it  may 
be  used  in  evidence  against  him.  On  the  contrary,  the  effect  of 
the  case  is  this  : — If  the  answer  is  given  by  the  force  of  the 
statute,  by  the  legal  obligation  of  the  man,  it  shall  be  received  in 
evidence  against  him,  unless  the  statute  has  itself  some  express 
enactment  to  the  contrary.  Therefore,  when  the  statute  com- 
pelled him  to  answer,  it  compelled  him  to  answer  at  his  peril. 
If  the  Legislature  had  intended  that  he  should  have  any  protec- 
tion, it  would  have  enacted  it.  But  Mr.  Blake  argued  with  great 
force  that  the  115th  section,  when  it  enacted  that  "  No  question 
put  to  any  insolvent  on  any  examination  under  this  Act  shall  be 
deemed  unlawful  by  reason  only  that  the  answer  thereto  may 
expose  him  to  punishment  in  respect  of  some  one  or  more  acts  or 
things  by  this  Act  made  punishable  as  misdemeanors,"  impliedly 
enacted  that  it  should  be  unlawful  to  ask  him  any  question  which 
would  expose  him  to  a  prosecution  for  felony.  I  am  unable 
myself,  I  confess,  to  give  such  effect  to  the  plain  language  of  the 
115th  section.  I  cannot  suppose  it  was  based  upon  misconception 
of  the  Common  Law.     I  rather  prefer  to  hmit  it  to  the  extent  I 


102  QUEENSL-AND  JUSTICE   OP  THE   PEACE, 

E.  V.  King.        shall  indicate,  to  taking  the  interpretation  of  the  learned  Chief 
Lilley  J.  Justice,  that  a  man  may  refuse  to  answer  ; — that  may  possibly 

explain  it.  In  all  probabiUty,  that  was  present  to  the  minds  of 
the  Legislature.  Whatever  conception  you  attempt  to  fix  of  this 
section,  it  is  by  no  means  satisfactory.  It  has,  no  doubt,  produced 
considerable  doubt  in  the  interpretation  of  the  statute,  but  it  may 
be  that  in  creating  a  long  series  of  new  misdemeanors  (I  think 
there  are  twenty-four),  entirely  the  creatures  of  this  statute,  that 
the  Legislature  thought  it  would  be  better  to  make  this  enact- 
ment ;  that  although  a  man  might  be  exposed  to  a  prosecution 
for  misdemeanour  under  the  statute,  he  shall  not  refuse  to  answer. 
That  may  have  been  present  to  the  minds  of  the  Legislature.  It 
is  difficult  at  any  time  to  say  what  is  the  actual  intention  of  the 
Legislature,  and  all  we  are  bound  to  do  is  to  gather  the  construc- 
tion from  the  instruments  submitted  to  our  judgment.  Well, 
then,  we  know  that  the  law  leans  strongly  against  imphed  repeals. 
If  there  is  another  rational  interpretation  to  avoid  that,  it  must  be 
put  upon  it.  If  that  be  so,  the  principle  holds  more  strongly 
against  implied  enactments,  because  in  the  absence  of  that 
express  enactment  the  question  itself  is  not  unlawful  by  the 
common  law  ;  if  we  take  the  literal  reason  of  the  section,  it  would 
make  any  question  with  that  view,  or  having  that  tendency, 
unlawful.  It  would  be  an  extension  of  the  common  law  by  implied 
enactment,  because  at  Common  Law  the  question  was  not 
unlawful,  nor  the  answer.  But  the  protection  he  had  was  this, 
that  if  it  tended  to  criminate  him,  he  was  not  bound  to  answer  it. 
But  that  protection  seems  to  have  been  removed.  Therefore  I 
think  the  conviction  must  be  affirmed. 

Sheppard  J.  Sheppaed  J.  :    With  regard  to  the  first  point,  I  am  of  opinion 

that  on  a  debtor's  petition  to  be  adjudicated  an  insolvent,  it  is  not 
necessary  that  the  petition  should  be  supported  by  affidavit. 
Under  s.  43,  it  is  on  the  "  presentation  of  the  petition  and  on 
due  proof  of  presentation,"  the  debtor  can  be  made  an  insolvent 
on  a  petition  containing  an  allegation  of  his  inabihty  to  meet  his 
creditors,  and  that  is  one  of  the  acts  of  insolvency  set  under  out 
s.  44.  Where  the  proceedings  are  adverse,  where  it  is  a  creditor's 
suit,  it  is  necessary  that  there  should  be  an  affidavit  verifying 
the  petition  ;  and  where  in  the  latter  section  liquidation  by 
arrangement,  which  is  a  non-contentious  suit,  and  the  debtor 
has  to  file  a  petition,  he  also  has  under  the  rules  to  make  an 
affidavit,  and  on  reference  to  form  No.  89,  he  does  not  swear 
to  the  fact  of  his  being  unable  to  pay  his  debts,  but  simply  makes 


CRIMINA.L  EEPORTS,   1860—1907.  103 

an  affidavit  as  to  the  most  convenient  place  for  his  creditors  to       ^-  "•  ^™<*- 
meet.     Therefore,  the  principle  of  the  Act  is,  that  in  contentious       sheppard  J. 
suits,  the  appUcation  for  adjudication  must  be  supported  by 
affidavit,  and  in  non-contentious  cases  it  need  not.     I  do  not 
apprehend  that  r.   38   applies,    that    speaks   of    motions,    and 
although  the  learned  counsel  informed  the  Court  of  a  similarity 
between  petitions  and  summonses  in  the  Court  of  Chancery,  I 
apprehend  it  has  no  appHcation,  because  under  the  rules  petitions 
are  excluded,  and  even  if  it  did  apply,  there  is  authority  for 
holding  that  the  Act  of  the  Legislature  must  prevail  over  the 
rules.     Lord  Chief  Justice  James  says  : — "  The  Act  of  Parlia- 
ment is  framed,  and  the  rule  must  be  interpreted  by  it,  and  that 
rules  must  give  way  to  the  plain  terms  of  the  Act."     Here  the 
plain  terms  of  the  Act  are,  that  on  an  application  for  adjudication, 
the  petition  is  to  be  filed,  and  on  proof  of  that,  which  would  be 
furnished  by  the  endorsement  of  the  Registrar  on  the  petition, 
adjudication  is  made.     Therefore,  I  think  that  point  must  fail. 
With  regard  to  the  other  question,  no  doubt  it  is  a  matter  of 
very  great  difficulty,  and  I  would  refer  to  the  previous  Acts  of 
Council  and  of  the  Legislature,  which  deal  with  the  examination 
of  insolvents,  and  what  questions  they  were  bound  to  answer, 
and  what  they  were  permitted  to  refuse  to  answer.     Under  the 
old  Insolvency  Act  of  the  Colony  of  New  South  Wales  (5  Vic, 
No.  17),  the  insolvent  was  compelled  to  answer  all  questions  that 
tended  to  the  discovery  of  his  property  or  estate,  and  there  was 
no  privilege  allowed  him.     That  does  not  appear  to  have  been 
a  satisfactory  state  of  law,  and  it  was  altered  by  the  7  Vic,  No.  19. 
By  s.  22,  it  is  enacted  "  That  if  any  insolvent  under  examination 
before  the  Court  or  Commissioner  shall  refuse  to  answer  any 
lawful  question  put  to   him,   he  may  be  committed  to  prison 
until  he  shall  submit  to  make  such  answer.     Be  it  enacted  that 
after  the  passing  of  this  Act  no  question  put  to  an  insolvent 
on  any  such  occasion  shall  be  deemed  unlawful  by    reason  only 
that  the  answer  thereto  may  expose  him  to  punishment  under 
this  Act.     Provided  that  no  such  examination  or  any  answer 
thereto  shall  be  admissible  in  evidence  against  such  insolvent 
(other  than  on  a  prosecution  against  him  for  perjury)   except 
for  the  purposes  of  this  Act  only."     Then  19  Vic,  No.  33,  says, 
"  Provided  however  that  no  examination  or  answer  of  the  person 
charged  with  any  indictable  ojEfence  under  the  provisions  of  the 
Insolvent  Acts  in  force  for  the  time  being  shall  be  admissible    . 
in  evidence  against  him  on  the  trial  of  any  indictment  other  than 


lOi  QUEENSLAND  JUSTICE   OF  THE   PEACE. 

R.  V.  King.  a  prosecution  against  him  for  perjury."  So  that  before  The 
SheppaxdJ.  Insolvency  Act  of  1864,  the  law  was,  that  an  insolvent  should 
give  full  discovery,  but  that  his  answer  could  not  be  used  against 
him  on  the  trial  of  any  other  indictment  other  than  perjury.  The 
Act  of  1864  was  drawn  from  the  English  Act  passed  in  the  12th 
and  13th  Vic,  and  that  also  enacted  that  fuU  discovery  should 
be  made,  and  it  was  held  to  take  away  from  the  insolvent  the 
right  to  object  to  any  question,  although  the  answer  might  tend 
to  convict  him.  That  was  the  law  down  to  Begina  v.  Scott  (sv/pra). 
But  it  seems  to  me  that  it  must  be  remembered  that  that  was  a 
decision  the  correctness  of  which  was  very  much  canvassed. 
It  is  disapproved  by  Mr.  Greaves  in  his  "  Russell  on  Crimes," 
and  was  dissented  from  by  one  of  the  Judges  forming  the  Court, 
and  it  was  strongly  disapproved  by  Sir  Fitzroy  Kelly  in  a  late 
case,  and  also  to  a  certain  extent  by  Sir  A.  Cockburn.  So  that 
although  the  law  had  been  settled  in  that  way,  there  had  been  all 
these  discussions  on  the  matter.  Then  the  Act  of  1874  begins, 
and  it  is  necessary  to  ascertain  what  the  Legislature  intended 
by  the  words  used  in  the  Act,  and  it  must  be  remembered  that 
they  were  deahng  with  the  necessity  of  having  a  fuU  discovery 
of  the  insolvent's  property  and  estate,  and  also  that  there  was 
a  maxim  of  the  Common  Law  that  a  man  should  not  be  compelled 
to  accuse  himself.  That  being  the  state  of  the  case,  ss.  114, 
115,  and  116  of  the  Act  are  passed.  Section  114  is  for  the  purpose 
of  bringing  the  insolvent  before  the  Court  and  for  the  discovery 
of  documents.  Then,  before  enacting  to  what  extent  the  insolvent 
is  to  be  examined,  s.  115  is  put  in  : — "  No  question  put  to  any 
insolvent  on  any  examination  under  this  Act  shall  be  deemed 
unlawful  by  reason  only  that  the  answer  thereto  may  expose 
him  to  punishment  in  respect  of  some  one  or  more  acts  or  things 
by  this  Act  made  punishable  as  misdemeanors."  Section  116 
gives  the  right  to  the  Court  to  examine  the  insolvent.  It  seems 
to  me  impossible  to  hold  that  the  Legislature,  under  s.  115,  did 
not  intend  to  draw  a  distinction  between  misdemeanors  and 
felonies,  and  that  when  they  say  that  no  question  put  to  the 
insolvent  shall  be  deemed  unlawful  by  reason  only  that  the  answer 
thereto  may  expose  him  to  punishment  in  respect  of  some  one  cfr 
more  acts  or  things  by  this  Act  made  punishable  as  misdemeanors, 
it  seems  to  me  that  they  must  have  intended  to  take  into  con- 
sideration the  doubt  there  was  in  the  law  before,  that  in  the  case 
,  of  felony  he  should  not  be  compelled  to  accuse  himself.  But  I 
do  not  think  that  it  means  that  the  question  itself  is  to  be  unlawful, 


CEIMINAL  REPORTS,   1860—1907. 


103 


that  is  to  say,  that  the  Judge  is  to  interfere  and  say  that  a  question 
which  may  relate  to  the  discovery  of  the  deahngs  of  the  insolvent, 
and  may  also  lead  to  a  prosecution  for  felony,  that  he  is  to  say, 
"  I  cannot  allow  that  question  to  be  put."  An  unlawful  question, 
in  the  ordinary  sense  of  the  term,  is  one  that  the  Judge  says  cannot 
be  put  in  law.  So  that  in  my  opinion  the  result  is,  that  when  a 
question  is  put  to  an  insolvent  which  in  some  way  may  expose 
him  to  the  punishment  for  felony,  and  which  may  be  given  in 
evidence  against  him  on  a  charge  of  felony  under  the  Act,  that  he 
has  the  right  to  demur  to  the  question  and  refuse  to  answer  it. 
In  this  case  the  objection  was  not  made,  and  inasmuch  as  the 
objection  was  not  made,  the  case  of  Regina  v.  Sloggett  (1  Dears. 
656)  is  an  authority,  and,  therefore,  the  question  having  been 
answered  without  objection,  it  appears  to  me  that  it  was  properly 
received,   and,   consequently,   the  conviction  must  be  affirmed. 

Conviction  affirmed. 

Solicitor  for  prisoner  :    A.  J.  Thynne. 

Solicitor  for  prosecution  :    TAe  Crown  Solicitor  (Robert  Little). 


R.  V.  KiNd. 
Sheppard  J. 


[In  Banco.] 

R.  V.  DODWELL. 

L4  S.C.R.  171 ;   1  Q.L.R.  Pt.  I.,  p.  84.— Note.— See  also  s.  641  of  Criminal  Code. 
Case  referred  to  in  R.  v.  Highfield  (5  S.C.R.  at  188,  post).] 

Public  servant — Misappropriation  of  money — Evidence — The  Audit 
Act  of  1874  (38  Vic,  No.  12),  s.  49.* 

A  public  servant  may  be  conYicted  for  misapplying  moneys  which  have  come 
into  his  possession  for  or  on  account  of  the  Consolidated  Revenue,  notwithstanding 
that  it  was  not  his  duty  to  receive  such  moneys,  and  it  is  not  necessary  to  a 
conviction  that  the  Government  should  have  had  any  further  claim  or  title  to 
such  moneys  beyond  the  right  to  deal  in  account  with  them. 

Per  Sheppard  J.  ;  The  Crown  must  prove  that  the  Government  had  a  special 
or  general  property  in  the  moneys  upon  receipt  thereof  by  the  prisoner. 

Cbown  Case  Rbseevbd  by  Mr.  Deputy  Judge  Hely. 

G.  W.  DodweU  was  tried  before  me  at  the  last  sittings  of  the 
Western  District  Court,  holden  at  Warwick  on  the  26th  of  October, 
A.D.  1875,  under  the  49th  section  of  The  Audit  Act,  for  that  he,  being 


a7th, 


1876. 
38th  April. 


Cockle  G.J. 
Lutwyche  J. 
Lilley  J. 
Sheppard  J. 


*  Repealed— -S<e  Criminal  Code,  ss.  398  (V.),  641. 


106  QUEENSLAND  JUSTICE   OF  THE   PEACE. 

R.  V.  DoDWELL.    in  the  Public  Service,  did  misapply  certain  moneys  whick  had 
come  into  his  possession  on  account  of  the  ConsoUdated  Revenue. 

The  evidence  adduced  before  me  as  Deputy  Judge  in  the  trial, 
so  far  as  relates  to  the  question  I  have  to  submit  to  the  Court  of 
Criminal  Appeal,  was  as  follows  : — 

In  June,  1875,  prisoner  held  the  situation  of  Clerk  of  Petty 
Sessions  at  Warwick,  and  on  the  29th  of  that  month,  E.  B.  Douyere,. 
a  pubhcan  residing  in  that  town,  saw  the  prisoner,  asked  him  to 
forward  her  publican's  Ucense  fee  to  the  Treasury,  and  for  that 
purpose  handed  to  him  the  sum  of  £30  in  bank  notes,  which 
prisoner  received  from  her,  and  for  which  he  gave  her  a  receipt, 
which  was  produced  and  put  in  evidence  at  the  trial.  Prisoner 
was  to  get  a  bank  draft  for  the  above  amount,  and  send  it  down 
to  the  Treasury  for  her,  she  at  the  same  time  handing  him  the 
price  of  the  draft. 

Douyere  never  got  that  money  nor  any  part  thereof  back  from 
the  prisoner. 

r.  0.  Darvall  was  then  called,  and  proved  that  he  was  Revenue 
Clerk  in  the  Treasury  ;  that  it  was  his  duty  to  receive  all  Govern- 
ment moneys  on  account  of  the  Consohdated  Revenue ;  and 
that  the  prisoner  had  been  in  the  habit  of  sending  money  down 
to  the  Treasury  for  pubUcans'  licenses  ;  that  he  (prisoner)  was 
not  bound  to  receive  general  hcense  fees,  but  if  he  did  receive 
them  he  should  forward  them  to  the  Treasury  immediately  ;  that 
he  (witness)  had  never  received  any  credit  for  the  hcense  fee  of 
Mrs.  E.  B.  Douyere  ;  that  no  person  was  appointed  to  receive 
Hcense  fees — they  are  bound  to  be  paid  into  the  Treasury ;  that 
Mrs.  Douyere's  had  not  been  paid  into  the  Treasury  ;  that  it 
could  not  have  been  paid  in  without  his  knowledge,  and  that  it 
still  remained  unpaid. 

Edward  Boyd  CuUen,  Chief  Clerk  in  the  Treasury,  proved  that 
it  was  his  duty  to  open  all  letters  addressed  to  the  Under  Secretary 
of  the  Treasury,  and  should  there  be  any  remittances  therein, 
to  hand  them  to  the  Revenue  Clerk  ;  that  he  (witness)  knew 
prisoner,  and  that  he  never  received  a  remittance  from  him  on 
account  of  Mrs.  E.  B.  Douyere. 

At  the  conclusion  of  the  case  for  the  prosecution,  prisoner's 
counsel  objected  that  there  was  no  case  to  go  to  the  jury,  as  there 
was  no  evidence  to  show  that  the  money  received  by  prisoner  was 
received  on  account  of  the  Consolidated  Revenue  of  the  colony. 

I  overruled  the  objection,  and  left  the  case  to  the  jury,  who 
found  the  prisoner  guilty.  I  passed  judgment  on  him,  and  he 
is  now  in  gaol. 


CRIMINAL  REPOETS,   1860—1907. 


107 


Upon  the  application  of  counsel  for  the  prisoner,  I  consented  to     ^-  '"■  Dodweli,. 
reserve  for  the  opinion  of  the  Court  the  questions  :    "  Whether, 
upon  the  facts  stated,  I  was  right  in  leaving  the  case  to  the  Jury, 
and  whether  the  prisoner  was  properly  convicted  ?  " 

Real,  for  prisoner.  The  money  was  received  not  in  the  capacity 
of  a  servant  of  the  Government,  but  as  agent  for  the  prosecutrix 
for  the  purpose  of  obtaining  her  license  from  the  Treasury,  he 
not  being  an  officer  appointed  for  receiving  license  fees  on  account 
of  the  Consolidated  Revenue.  R.  v.  Beaumont  (Dears.  270), 
R.  V.  Thorp  (Dears.  &  B.  562,  27  L.J.  (M.C.)  764). 

Griffith  A.G.,  for  the  Crown. 

Cockle   C.J.  :     In  this   case,   the   question  reserved   for   our       Coekle  C.J. 
decision  is,  "  Whether,  upon  the  facts  stated,  there  was  a  case 
for  the  jury  ?  "     Now,  the  prisoner  was  charged  for  that  he  being 
in  the  public  service,  did  misapply  certain  moneys  which  had  ' 

come  into  his  possession  on  account  of  the  Consolidated  Revenue. 
Now,  money  did  come  into  his  possession — on  what  account  ? 
It  was  his  duty  to  receive  all  Government  moneys  on  account 
of  the  Consolidated  Revenue.  He  had  been  in  the  habit  of 
sending  money  down  to  the  Treasury  for  publicans'  licenses, 
although  not  actually  bound  to  receive  general  license  fees. 
Then,  according  to  his  own  statement  in  the  receipt,  the  money 
was  "  received  on  account  of  the  Public  Service  of  Queensland 
for  a  pubHcan's  License."  Accompanying  that  with  the  fact  that 
it  was  his  duty  to  receive  money  on  account  of  the  Consolidated 
Revenue,  I  apprehend  that  the  inference  is  that  this  money  came 
into  his  possession  on  account  of  the  Consolidated  Revenue. 
It  is  possible — though  that  probably  would  depend  upon  whether 
or  not  a  certificate  from  the  Bench  had  been  lodged  at  the  Treasury, 
or  whether  or  not  other  proceedings  had  taken  place  at  the 
Treasury — it  may  be  presumed  that  under  certain  circumstances 
Mrs.  Douyere  could  have  countermanded  the  purpose  for  which 
the  money  was  lodged.  There  is  no  evidence  whatever  that  she 
did  so  ;  and  as  against  all  the  world,  except  Mrs.  Douyere,  and 
possibly  even  as  against  her,  the  authorities  at  the  Treasury 
had  the  right  to  the  possession  of  this  money.  That  being  so, 
I  think  all  the  facts  necessary  to  sustain  the  information  under 
the  49th  section  of  The  Audit  Act  seem  to  have  existed,  and, 
all  events  to  have  been  found  by  the  jury ;  and,  consequently, 
that  the  conviction  must  be  affirmed. 

Lftwyche  J.  :    The  sole  point  reserved  for  the  consideration       Lutwyohe  J. 


108 


QUEENSLAND   JUSTICE    OP   THE    PEACE. 


U.  V.  DODWELL. 

Lutwyohe  J. 


Lilley  J. 


of  the  Court  in  this  case  is  : — "  Whether,  upon  the  facts  stated, 
I  was  right  in  leaving  the  case  to  the  jury,  and  whether  the 
prisoner  was  properly  convicted  ?  Well,  I  think  upon  the  facts 
stated  that  the  learned  Judge  was  quite  right  in  leaving  the  case 
to  the  jury,  and  that  the  prisoner  was  properly  convicted.  The 
propriety  of  the  conviction  rests  upon  circumstances  which  have 
just  been  stated  by  the  Chief  Justice,  and  upon  the  fact  which 
seems  to  me  to  have  been  perfectly  established,  that  the  money 
was  received  on  account  of  the  Consolidated  Revenue.  The  Act, 
which  appears  to  have  been  very  carefully  framed,  and  especially 
this  section  of  it,  seems  to  have  been  intended  to  prevent  persons 
in  the  Public  Service,  who  received  pubUc  money,  from  appro- 
priating it  to  their  own  use,  whether  it  is  their  duty  to  receive 
the  money  or  not.  It  may  be  part  of  their  duty  to  receive  money 
for  the  particular  purpose  for  which  it  is  lodged  in  their  hands, 
but  on  the  other  hand  it  may  not ;  but  the  section  apphes  to  all 
persons  in  the  Public  Service  who  obtain  possession  or  control 
of  moneys  on  account  of  the  Consolidated  Revenue.  Then,  if 
any  person  in  the  Public  Service  receives  money  to  be  applied  to 
the  Public  Service,  and  therefore  forms  necessarily  a  part  of  the 
Consolidated  Revenue  when  it  reaches  the  Treasury,  he,  under 
the  terms  of  this  section,  appears  to  be  subject  to  the  penalty 
contained  in  it.  Now,  it  is  quite  clear  that  Dodwell  was  in 
the  PubHc  Service  ;  he  was  clerk  of  petty  sessions  at  Warwick ; 
the  money  came  into  his  possession  from  Mrs.  Douyere,  and  it  was 
her  money,  in  my  opinion,  until  it  reached  the  Treasury.  It 
is  not  necessary,  however,  to  state  whose  property  the  money 
was  ;  it  is  sufficient  that  it  shall  be  shown  that  it  is  money,  and 
that  it  came  into  the  possession  of  a  public  servant  for  and  on 
account  of  the  Consolidated  Revenue.  That  appears  to  me  to 
have  been  perfectly  established,  and,  therefore,  I  think  that  this 
conviction  was  perfectly  right,  and  ought  to  be  affirmed. 

Lilley  J.  :  I  have  but  very  few  words  to  add  to  the  judgments 
already  delivered.  It  seems  to  me  that  the  plain  meaning  of  the 
section  is,  that  if  anyone  being  in  the  Public  Service  receives 
money  with  which  the  Government  would  have  a  right  to  deal  in 
account  in  any  way,  although  it  might  not  ultimately  be  entitled 
to  keep  the  money,  if  a  person  receives  money  under  these 
circumstances  and  misapplies  it,  he  is  guilty  of  the  offence.  I 
think  the  main  question  is — "  Was  he  in  the  Public  Service,  and 
did  he  receive  the  money  on  account  of  the  •  Consolidated 
Revenue  ?  "  or,  in  other  words,  "  Did  he  receive  money  with 


CRIMINAL  REPORTS,   1860—1907. 


109 


which  the  Government  had  a  right  to  deal  or  to  have  the  immediate 
possession  ?  " — and  that  appears  to  me  to  be  the  whole  meaning 
of  the  Act.  In  this  case,  the  facts  are  clear  enough — he  received 
the  money  on  account  of  the  Public  Service,  and  that  fact  being 
left  to  the  jury,  they  have  found  that  it  was  received  on  account 
of  the  Consolidated  Revenue.  It  seems  clear  that  Mrs.  Douyere 
paid  her  money  in  order  to  obtain  some  Ucense  which  had  been 
already  granted  under  The  Publicans  Act.  The  Government, 
therefore,  had  a  clear  right  to  deal  with  the  money,  and  whether 
they  might  deal  with  it  in  the  way  of  retaining  it  and  granting 
the  license,  or  in  refusing  to  issue  the  license  and  returning  the 
money  to  her,  was  a  matter  with  which  the  prisoner  had  nothing 
to  do.     I  think,  therefore,  that  the  conviction  must  be  affirmed. 

Sheppabd  J.  :  The  prisoner  in  this  case  is  indicted  under  the 
49th  section  of  The  Audit  Act  for  misapplying  certain  moneys 
which  had  come  into  his  possession  on  account  of  the  Consolidated 
Revenue,  he  being  a  person  employed  in  the  Public  Service.  It 
appears  to  me  that  it  is  necessary  to  establish  that  the  money 
which  is  received  by  a  pubUc  officer  is  m.oney  which  by  the  receipt 
becomes  either  the  special  or  the  general  property  of  the  Govern- 
ment. That  is  analogous  to  embezzlement,  and  it  is  clear,  that 
although,  since  the  alteration  of  the  law  it  is  not  necessary  to 
show  that  the  money  is  received  by  the  servant  in  virtue  of  his 
employment,  still  it  is  necessary  to  establish  that  the  money 
received  is  the  property  of  the  master  ;  that  is  to  say,  that  he  has 
either  a  special  or  a  general  property  in  that  money.  There  is  a 
late  authority  for  that  in  the  Queen  v.  Gullen  (L.R.  2  C.C.R.  28). 
Here  it  appears  to  me  the  question  is — Whether,  when  the  prisoner 
being  in  the  Public  Service  received  this  money,  the  Government — 
the  Crown — had  a  special  or  general  property  in  it  ;  that  is  to 
say,  supposing  some  other  officer  of  the  Government  had  come 
to  the  Clerk  of  Petty  Sessions  directly  this  money  was  received, 
and  said,  "  Now  hand  this  money  over  to  me."  If  he  had  the 
right  to  do  that,  it  appears  to  me  that  the  Crown  had  a  special 
property  in  the  money.  It  might  turn  out  afterwards  that  if  the 
license  fee  had  been  paid  by  the  agent  of  Mrs.  Douyere  in  Brisbane, 
the  money  would  have  to  be  returned,  but  if  they  had  a  special 
property  in  the  money,  then  the  prisoner  was,  it  seems  to  me, 
properly  convicted.  Now  there  were  two  states  of  circum- 
stances laid  before  the  jury — one,  the  case  argued  by  the  learned 
counsel  for  the  prisoner,  where  it  appeared  that  the  money  was 
paid  to  the  prisoner  for  the  purpose,  and  for  the  purpose  only,  of 


R.  V.  DOBWELL. 


LiUey  J. 


Sheppard  J. 


110 


QUEENSLAND  JUSTICE   OF  THE   PEACE. 


E.  V.  DoDWELL.  getting  a  draft,  and  sending  that  draft  down  to  the  Treasury. 
Sheppard  J.  It  appears  now,  from  the  receipt,  that  he  acknowledges  not  to 
have  received  it  on  behalf  of  Mrs.  Douyere,  but  on  behaK  of  the 
Public  Service.  The  obtaining  the  draft  was  merely  the  course 
of  transmitting  the  money  to  the  Treasury.  It  therefore  seems 
that  directly  he  received  it  on  behalf  of  the  PubUc  Service,  as 
stated  in  the  receipt,  that  the  officers  of  the  Revenue  had  a  right 
to  its  immediate  possession,  and  having  that  right  they  had  that 
special  property  which  it  appears  to  me  they  must  have,  for  it  to 
form  a  portion  and  to  be  received  on  account  of  the  Consolidated 
Revenue.  These  facts,  whether  he  received  it  on  behalf  of  Mrs. 
Douyere,  on  whether  he  received  it  on  behalf  of  the  Consolidated 
Revenue,  were  left  to  the  jury,  and  they  have  found  that  the 
received  it  on  behalf  of  the  revenue.  I  am  therefore  of  opinion 
that  the  conviction  must  be  affirmed. 

Conviction  affirmed. 

Solicitors  for  the  prisoner  :    Thompson  &  Hellicar. 

Solicitor  for  the  Crown  :    The  Crown  Solicitor  (Robert  Little). 


1877. 
13th  November. 

Cockle  C.J. 
Lutioyche  J. 
Lilley  J. 


[In  Banco.] 

In  re  HAUGHTON. 

[5  S.C.B.  53 ;    1  Q.L.R.  Pt.  11.,  p.  53 Note.— See  also  Emmerson  v.  Clarke,  3 

S.C.R.  76,  ante  p.  71 ;  Millis  v.  Kiefer,  10  Q.L.J.  142,  post ;  Clifford  v.  White, 
4  Q.J.P.R.  132  ;  1910  S.R.Q.  364.] 

Illegally  losing  cattle — Prohibition — 17   Vic,  No.  3,  s.  6.* 

In  order  to  support  a  conviction  under  s.  6  of  17  Vic,  No.  3,  for  illegally  using 
an  animal,  it  must  be  shown  that  the  animal  was  used  for  the  profit,  convenience, 
or  pleasure  of  the  party  using  it. 

Motion  to  make  absolute  a  rule  nisi  calhng  upon  Thomas  John 
Sadlier,  P.M.,  Tambo,  and  Maurice  Solomon  to  show  cause  why  a 
prohibition  should  not  issue  restraining  them  from  further  pro- 
ceeding in  respect  of  a  conviction  against  George  Haughton  for 
illegally  taking  and  using  a  horse,  upon  the  grounds  :  (1)  That  the 
magistrate  acted  ultra  vires  in  admitting  evidence  given  in  another 
case  ;  and  (2)  that  there  was  no  evidence  to  support  the  con- 
viction, or,  in  other  words,  that  there  was  no  evidence  of  using 
on  the  part  of  Haughton. 


*  See  Criminal  Code,  s.  445. 


CRIMINAL  REPORTS,   1860—1907.  Ill 

Haughton  and  a  man  named  Lacy  were  originally  charged  ■^"  '■"  Haoghton. 
before  the  Police  Magistrate  with  stealing  the  horse  in  question. 
After  several  witnesses  had  been  examined  this  charge  was  with- 
drawn, and  one  for  illegally  using  substituted.  The  depositions 
previously  taken  were  read  over  and  accepted  as  evidence  against 
the  defendants,  no  objection  being  taken  by  him.  The  evidence 
was  again  sworn  to,  and  an  opportunity  of  cross-examination 
allowed. 

Haughton  was  sentenced  to  six  months'   imprisonment  with 
hard  labour. 

The  facts  appear  in  the  judgment. 

Garrick,  for  Haughton,  moved  the  rule  absolute. 

Griffith  A.G.,  for  the  Crown,  in  support  of  the  conviction. 

LuTWYCHE  J.  deUvered  the  judgment  of  the  Court.  Lutwyohe  J. 

In  this  case,  as  we  are  all  agreed  upon  the  second  ground  on 
which  the  rule  was  obtained,  it  will  not  be  necessary  for  me  to 
say  anything  about  the  first.  With  regard  to  the  second  ground 
of  the  objection  to  the  conviction,  which  is  that  there  was  no 
evidence  to  support  the  conviction,  I  think  that,  after  the  very 
careful  investigation  that  the  Court  has  made  of  the  evidence, 
that  the  learned  counsel,  Mr.  Garrick,  who  appeared  on  behalf 
of  the  prisoner  Haughton,  is  right.  To  support  a  conviction 
for  illegally  using  an  animal  under  s.  6  of  17  Vic,  No.  3,  it  must 
appear  the  animal  was  used  for  the  profit,  convenience,  or  pleasure 
of  the  party  using  it — that  was  the  definition  which  I  gave  in 
my  construction  of  the  meaning  of  the  statute  in  the  case  of 
Emmerson  v.  Clarke  (3  S.C.R.  76).  Now,  in  this  case  I  am  unable 
to  see  that  there  is  any  evidence  to  show  that  Haughton  used 
the  mare  in  question  for  his  own  profit,  pleasure,  or  convenience. 
So  far  as  I  have  been  able  to  form  a  judgment  on  the  facts  of  the 
case,  the  animal  was  at  one  time  in  the  course  of  the  present  year 
the  property  of  Haughton.  It  was  sold  by  him  to  Lacy,  it 
appears,  in  this  way,  that  he  gave  Lacy  the  right  to  sell  any 
horses  belonging  to  him.  Then  it  appears^  that,  in  April  of  the 
present  year.  Lacy  sold  a  number  of  horses,  which  had  been 
running  the  mail  on  the  Charleville  line,  to  Solomon  and  Bredhauer. 
This  mare  in  question  was,  as  late  as  July  of  the  present  year, 
running  at  large,  and  a  day  or  two  afterwards  was,  by  the  order 
of  Haughton,  driven  by  Wilhams  to  his  place  at  Nive.  A  week 
"after  that  he,  accompanied  by  Lacy,  came  to  the  paddock  and 
assisted  him  in  catching  the  mare,  which  was  then  mounted  by 


112 


QUEENSLAND  JUSTICE   OP  THE  PEACE. 


In  re  Hatjghton.  Williams.  But  there  is  no  evidence  in  the  case  from  which  it  can 
Lutwyohe  J.  possibly  be  inferred  that  Haughton  was  aware  of  the  sale  by 
Lacy  to  Solomon  and  his  partner  of  the  animal  in  question. 
Then,  if  Haughton  did  not  know  of  the  sale  to  Solomon,  but 
was  aware  that  he  had  given  Lacy  authority  to  sell  any  horse 
belonging  to  him,  he  might,  and  no  doubt  did,  reasonably  infer 
that  Lacy  was  desirous  of  selling  this  mare  which  was  included 
in  the  terms  of  the  contract  between  himself  and  Lacy,  and  it 
seems  to  me  to  be  a  very  natural  course  of  conduct  for  him  to 
tell  Lacy  where  the  mare  was,  to  point  her  out,  to  assist  in  catch- 
ing her,  and  let  her  be  used  by  the  owner.  Therefore  he  cannot 
be  said  to  have  illegally  used  the  mare,  not  having  done  so  for 
his  own  profit,  convenience,  or  pleasure.  Therefore  I  think  the 
conviction  must  be  quashed. 

Bide  absolute. 

Solicitor  for  the  Crown  :    The  Crown  Solicitor. 

SoUcitors  for  George  Haughton  :    Daly  <fe  Abbott. 


1880. 
19th  March. 

Lilley  C.J. 
Lutwyche  J. 
Hardivg  J. 


[Full  Court.] 

E.  V.  WELLS. 

[5  S.C.R.  181 ;  7  Q.L.J.  N.C.  105.— Note.— 29  Vic,  No.  6,  repealed.] 

Criminal  law — Crown  case  reserved— Error — Larceny  Act  of  1865 
(29   Vic,  No.  6),  s.  44* — Bobbery  under  arms — Wounding. 

To  support  a  conviction  under  a.  64  of  the  Larceny  Act  of  1865  (29  Vic,  No. 
6),  it  is  not  necessary  that  the  wounding  and  robbery  should  be  committed  on  the 
same  person. 

On  a.  Crown  case  reserved,  counsel  are  not  allowed  to  refer  to  matteis  outside 
the  case  as  stated. 

Ceown  Case  Reserved  by  Lilley  C.J. 

Joseph  Wells  was  tried  at  Toowoomba  for  robbery  under  arms 
and  wounding.  The  information  was  laid  under  s.  44  of  the 
Larceny  Act  (29  Vic,  No.  6),  and  in  the  first  count  alleged  that, 
on  the  26th  of  January,  1880,  the  prisoner,  at  CunnamuUa,  bemg 
then  armed  with  a  loaded  revolver,  "  in  and  upon  one  Joseph 
Berry,  feloniously  did  make  an  assault ;  and  him,  the  said  Joseph 
Berry,  in  bodily  fear  and  danger  of  his  fife  feloniously  did  put, 
and  certain  money     .     .     .     the  property  of  the  said  Joseph 


See  Criminal  Code,  s.  411. 


CRIMINAL  REPORTS,   1860-t1907.  113 

Berry,  from  the  person,  in  the  presence  and  against  the  will  of  ^^-  "•  Wells. 
the  said  Joseph  Berry,  feloniously  and  violently  did  steal,  take, 
and  carry  away.  And  the  said  Joseph  Wells,  immediately  after 
he  robbed  the  said  Joseph  Berry  as  aforesaid,  did,  by  discharging 
said  pistol  so  loaded  as  aforesaid,  one  Wilham  Murphy  feloniously 
and  unlawfully  wound."  The  words  of  the  second  count  followed 
those  of  the  first,  except  that  the  money  stolen  was  alleged  to  be 
that  of  the  corporation  of  the  Queensland  National  Bank, 
Limited,  instead  of  that  of  Joseph  Berry,  as  stated  in  the  first 
count.  Upon  this  information  the  prisoner  was  found  guilty 
and  sentenced  to  death.  After  sentence,  and  before  it  was 
carried  into  efEect,  application  was  made  to  the  Chief  Justice 
to  state  a  special  case  for  the  opinion  of  the  Full  Court,  which 
he  did  as  follows  : — The  following  matters  alleged  to  be  errors  on 
the  record  have  been  submitted  to  me,  and  I  have  been  requested 
to  solicit  the  opinion  of  the  Supreme  Court  thereon.  The  matters 
are  apparent  on  the  information,  and,  of  course,  arose  before  me 
at  the  trial.  They  are  as  follows  : — (1)  That  the  first  count  of 
the  information  is  bad,  because  it  charges  the  prisoner  Joseph 
WeUs  with  having  feloniously  made  an  assault  upon  one  Joseph 
Berry,  and  with  having  put  the  said  Joseph  Berry  in  bodily  fear 
and  danger  of  his  life,  and  with  having  feloniously  and  violently 
stolen  certain  property  of  the  said  Joseph  Berry,  and  with 
having,  immediately  after  he  so  robbed  the  said  Joseph  Berry 
as  aforesaid,  feloniously  and  unlawfully  wounded  one  William 
Murphy.  (2)  The  second  count  is  bad,  because  it  charges  the 
prisoner  (as  in  the  first  count),  and  with  having  .  .  .  stolen 
certain  property  of  the  corporation  of  the  Queensland  National 
Bank,  Limited,  from  the  person,  and  in  the  presence,  and  against 
the  will  of  the  said  Joseph  Berry,  and  with  having  immediately 
after  (as  in  the  first  count).  (3)  That  the  prisoner  was  im- 
properly indicted  under  s.  44  of  the  Larceny  Act  of  1865.  (4)  That 
the  Queensland  National  Bank,  Limited,  is  not  a  "person" 
within  the  meaning  of  s.  44  of  that  Act.  (5)  That  both  counts  of 
the  indictment  are  bad  for  duplicity  in  stating  two  offences  in  the 
one  count.  (6)  That  the  indictment  and  the  matter  contained 
therein  are  not  sufficient  in  law  to  warrant  the  judgment  against  the 
said  Joseph  Wells,  (7)  That  a  general  judgment  having  been 
given  on  the  whole  indictment,  one  count  at  least  of  which  was  bad 
in  substance,  the  judgment  ought  to  be  reversed.  The  question 
is.  Are  all  or  any  of  the  matters  errors  in  law  ?  I  submit  them, 
therefore,  to  the  Court  in  virtue  of  my  powers  of  the  statute." 


114  QUEENSLAND  JUSTICE   OF  THE   PEACE. 

E.  V.  Wells  Garrick  (with  him  Chvbb  and  Sutledge),  for  the  prisoner,  asked 

how  many  counsel  the  Court  would  hear  on  behalf  of  the  prisoner. 
LiLLEY  C.J.  :   In  matters  of  error,  only  one  is  usually  heard  on 
each  side.     The  Court  will  hear  the  whole  number  if  they  wish. 

Lille Y  C.J.  :  There  was  a  verdict  on  both  counts,  and  a 
general  judgment  was  given.  This  must  be  treated  as  a  matter 
of  error. 

Garrick  asked  whether  it  was  open  to  the  prisoner's  counsel  to 
refer  to  anything  beyond  the  indictment. 

Haeding  J.  :  My  feeling  is  that  they  should  be  allowed  to  argue 
anything  that  was  tenable.  If  it  were  shown  there  was  error,  it 
could  be  rectified  on  the  special  case. 

LuTWYCHE  J.  :  The  Court  has  never  allowed  counsel  to  travel 
outside  the  special  case  as  stated. 

LiLLEY  C.J.  :  The  constitutional  tribunal  has  disposed  of  all 
matters  of  fact.  The  Court  must  deal  with  the  information  and 
say  whether  the  law  allowed  the  Attorney-General  to  file  it,  and 
whether  it  was  sufficient. 

Garrick  :  The  objection  to  the  first  count  is  the  robbing  of  one 
person  and  the  wounding  of  another.  The  prisoner's  contention 
is  that  they  must  be  of  the  same  person.  (29  Vic,  No.  6,  ss.  44, 48  ; 
24  and  25  Vic,  c  96,  s.  43).  The  intention  was  that  where  there 
was  robbery,  death  should  be  inflicted  when  the  person  robbed  was 
wounded.  (R.  v.  Thomas,  1  Leach  330.)  As  to  the  second 
count,  the  property  is  laid  in  the  Bank.  (R.  v.  Rudick,  8  C.  &  P. 
237.)  As  to  error,  Gregory  v.  Regina,  15  Q.B.  957  ;  Holloway 
V.  Regina,  17  Q.B.  317,  were  cited  ;    Dwarris,  635. 

Chubb  and  Rutledge  followed. 

Pring  A.G.  and  Griffith  Q.C.,  for  the  Crown,  cited,  as  to  error, 
O'Connell  v.  Reg.,  1  Cox  531  ;  Nash  v.  Reg.,  33  L.J.M.C.  94. 
Where  the  crime  is  capital,  no  difference  how  many  counts,  there 
is  no  other  punishment.  The  offence  is  compounded  of  two 
other  offences.  (7  Wm.  IV.  and  1  Vic,  c  87  ;  7  and  8  Geo.  IV., 
c  29  ;  9  Geo.  IV.,  c  55  ;  2  Russell,  115).  The  statute  should 
have  used  words  showing  that  the  Legislature  meant  the  same 
person.  The  section  was  passed  to  meet  the  mischief  in  R.  v. 
Thomas  {supra). 

Griffith  Q.C.  followed. 

Lutwydhe  J.  LuTWYCHE  J.  :    I  think  it  best  to  confine  myself  to  the  pure 

questions  of  law  which  arise  on  the  record.     The  first  and  most 


CRIMINAL  REPORTS,   1860—1907. 


115 


important  question  is  that  which  was  expressed  in  the  first  count  of 
the  indictment,  and  to  say  whether  there  was  any  error  of  law 
stated  in  that,  one  must  look  at  s.  44  of  the  Larceny  Act  of  1865 
and  see  what  its  fair  meaning  is.  In  looking  at  a  section  of 
an  Act  of  Parliament  with  a  view  to  give  it  its  true  construction, 
one  must,  in  the  first  place,  look  to  the  language  of  the  section 
itself,  and  if  that  is  clear  and  plain,  so  that  "  he  who  runs  may 
read,"  there  will  be  no  occasion  to  travel  further.  But  if  there  be 
any  ambiguity  the  Court  may  with  propriety  look  to  other 
sections  of  the  same  statute,  or  to  sections  of  any  other  statutes 
which  are  in  pari  materia.  It  is  an  elementary  rule,  and  one 
consistently  enforced  by  the  Courts  in  giving  their  opinion  on 
the  meaning  of  statutes,  that  where  the  grammatical  meaning 
is  plain  and  clear  that  should  be  followed,  unless  some  manifest 
inconvenience,  absurdity,  or  injustice  would  result.  Looking  at 
the  terms  of  s.  44,  it  seems  to  me  that  the  words  are  exceedingly 
plain  and  clear.  I  consider  that  the  first  ingredient  in  the  offence, 
Tvhich  was  provided  for  in  that  section,  and  which,  I  beheve, 
was  created  by  it,  refers  to  the  intent  with  which  the  robbery  was 
committed,  and  that  the  whole  of  it  refers  to  an  offence  com- 
pounded of  robbery  and  wounding,  the  latter  of  which  might 
be  either  before  or  after  the  robbery.  The  contention  of  the 
counsel  who  have  addressed  the  Court  on  behalf  of  the  prisoner 
was  the  word  "  any,"  in  the  latter  part  of  the  section,  must 
mean  "  the  same."  They  might,  of  course.  They  might  be 
confined  to  the  same  person  who  was  robbed  and  wounded  ; 
but,  as  was  admitted  by  one  of  the  counsel,  the  word  "  any  " 
might  embrace  a  different  person  from  the  one  who  was  either 
robbed  or  wounded  ;  and  it  appears  to  me  that  is  really  the 
meaning  we  are  to  put  upon  that  part  of  the  statute.  I  see  no 
manifest  inconvenience,  absurdity,  or  injustice  likely  to  follow 
from  our  coming  to  such  a  conclusion.  On  the  contrary,  I  think 
there  would  be  a  manifest  inconvenience,  a  manifest  absurdity, 
and  a  manifest  injustice  from  holding  the  reverse  opinion.  A  case 
I  put  in  course  of  the  argument  appears  to  me  in  a  simple  way  to 
point  out  the  policy  of  the  Legislature  and  to  assist  in  explaining 
the  meaning  of  the  words  which  are  used  in  s.  44.  Supposing  an 
aged  and  feeble  man  on  a  journey,  and  accompanied  by  another 
whom  he  had  taken  with  him  for  his  assistance,  were  considered 
by  an  evil-disposed  person  to  be  a  desirable  person  to  rob,  and  the 
latter  were,  in  order  to  effect  his  purpose,  to  wound  the  strong 
man  and  immediately  afterwards  rob  the  other,  it  seems  to  me 


E.  V.  Wells. 
Lutwyohe  J. 


116 


QUEENSLAND   JUSTICE   OF  THE   PEACE. 


li.  c.  Wells. 
Lutwyche  J. 


Harding  J. 


Lilley  C.J. 


that  the  Legislature  has  very  prudently  provided  for  occurrences 
of  that  kind,  and  has  provided  for  it  in  no  other  part  of  the  statute. 
If  the  word  "  any  "  did  not  embrace  the  person  who  was  robbed, 
as  well  as  his  companion  who  was  wounded,  very  great  evils 
might  result.  The  Legislature  has  chosen  that  the  punishment 
for  these  two  offences  together  shall  be  much  more  severe  than 
they  considered  necessary  where  the  robbery  and  wounding  are 
separate,  and  it  seems  to  me  that  in  passing  the  Act  they  proceeded 
with  care,  circumspection,  and  astuteness,  when  they  made  this 
section  refer  to  more  than  one  case.  I  am  therefore  of  opinion 
that  the  first  count  of  the  information  was  good,  and  that  there 
was  no  error  in  that  count.  The  second  count,  as  far  as  I  can 
see,  only  differs  from  the  first  in  the  fact  that  the  property  which 
was  alleged  to  have  been  stolen  was  laid  in  the  corporation  of  th© 
Queensland  National  Bank,  Limited,  instead  of  in  Berry.  To 
make  it  a  good  count  the  property  must  have  been  laid  in  some 
person,  and  it  might  well  have  been  either  in  Berry,  as  in  the 
first  count,  or  in  the  bank.  I  can  see  no  error  there.  The  other 
points  raised  will  be  more  or  less  decided  by  the  construction  the 
Court  puts  on  the  first  and  second  objections.  It  was  objected 
that  a  corporation  was  not  a  person,  but  it  was  not  alleged  in 
the  information  to  be  such,  so  that  there  is  nothing  in  that  point. 
Both  counts,  I  think,  are  good  ;  and  even  if  one  of  them  were 
bad,  as  the  punishment  annexed  by  the  Legislature  is  the  same, 
I  think  the  case  of  O'Gonnell  v.  The  Queen,  which  was  cited, 
disposes  of  the  matter.  Upon  the  whole,  therefore,  I  am  of 
opinion  that  the  judgment  ought  to  be  affirmed. 

Habding  J.  :  I  think  that  a  Judge  has  power  to  state  a  special 
case,  even  though  the  points  raised  had  not  been  taken  at  the 
trial.     I  concur  with  the  views  expressed  by  Lutwyche  J. 

Lilley  C.J.  :  I  assent  entirely  to  the  conclusion  at  which  my 
brother  judges  have  arrived — that  there  was  no  error  on  this 
record,  and  that  the  judgment  ought  to  be  affirmed.  I  con- 
sidered the  points  raised,  and  directed  the  jury  that  it  was  not 
necessary  that  the  person  wounded  should  be  the  same  person 
who  was  robbed.  I  also  directed  them  that  there  must  be  an 
immediate  connection  between  the  robbery  and  the  wounding, 
that,  in  fact,  the  wounding  must  be  either  at  the  beginning  for 
the  purpose  of  getting  hold  of  the  plunder,  or  for  the  purpose 
of  securing  his  escape  with  the  booty.  I  most  carefully  directed 
them  as  to  the  immediateness,  so  that  the  prisoner  has  not  suffered 


CEIMINAL  REPORTS,   1860—1907. 


117 


irom  the  absence  of  any  averment  on  this  point.  I  also  express 
the  opinion  that  s.  44,  upon  its  plain  interpretation,  is  especially 
apphcable  to  the  circumstances  of  this  colony.  I  think  the 
course  I  have  taken  in  stating  a  special  case  is  far  preferable  to  a 
writ  of  error,  in  which  latter  event  the  prisoner  would  have  been 
dragged  to  the  Court  to  listen  to  the  whole  of  the  argument 
and  receive  judgment. 

Ltjtwyche  J.  :   I  am  in  favour  of  the  course  taken. 

Conviction  affirmed. 
Solicitor  for  prisoner  :    Bunton. 


B.  V,  WeI/LS. 
Lilley  C.J. 


[PtTLL   CotTET.] 

R.  V.  HIGHFIELD. 
[5  S.C.R.  186 — Note.— See  alsb  ss.  391  and  39SV  of  Criminal  Code.] 

Criminal  law — Misapplication  of  moneys  by  pvblic  servant — Audit 
Act  of  1874  (38  Vic,  No.  12),  s.  49*. 

On  an  information  under  s.  49  of  The  Audit  Ad  of  1874  it  is  not  necessary  to 
prove  tliat  tlie  misapplication  of  public  money  was  fraudulent,  or  that  it  was 
misapplied  or  improperly  disposed  of  with  any  intent  whatever. 

Crown  Case  Reseeved  by  Lutwyche  J. 

Wm.  Highfield  was  tried  before  me  at  the  last  Criminal  Sittings 
■of  the  Supreme  Court,  held  at  Brisbane,  under  s.  49  of  The  Audit 
Act  of  1874,  for  that,  while  he  was  employed  in  the  pubhc  service 
as  Engineer  of  Waterworks,  a  certain  sum  of  money  amounting  to 
£83  12s.  8d.  came  into  his  possession  and  control  by  virtue  of  such 
employment,  for  the  use  and  benefit  of  certain  other  persons,  and 
that  he  feloniously  misappUed  £67  15s.  of  the  same,  contrary  to 
the  provisions  of  that  statute.  A  second  count  in  the  information 
■charged  him  with  improperly  disposing  of  the  same  ;  and  there 
were  two  other  counts  charging  him  with  the  misapphcation  and 
improper  disposal  of  the  same,  he  being  a  person  Uable  to  account 
for  the  receipt  and  expenditure  of  public  moneys.  It  appeared 
from  the  evidence  given  that  in  November,  1879,  the  prisoner 
was  in  the  public  service  as  Engineer  of  Waterworks,  and  that 
in  that  month  he  applied  to  Edward  Deighton,  Under  Secretary 
of  the  Department  of  Works,  Brisbane,  for  authority  to  draw 
on  the  Q.N.  Bank  at  Ipswich  for  the  sum  of  £83  12s.  8d.,  to  meet 


1880. 
6th  April. 

Lilley  C.J. 
Lutwyche  J. 
Harding  J. 


*  See  Criminal  Cede,  s.  641. 


118  QUDENSLAND  JUSTICE   OF  THE   PEACE. 

R.  V.  H16HFIELD.  a  corresponding  amount  due  for  wages  at  Warwick  for  the  month 
of  October  to  men  employed  in  the  Works  Department.  Mr. 
Deighton  gave  the  required  authority  to  draw  on  the  Bank, 
and  the  prisoner  drew  for  the  amount,  which  was  placed  by  the 
Bank  to  his  credit  in  an  account  which  he  then  had  at  the  Bank, 
headed  "  William  Highfield's  PubUc  Account."  In  the  month 
of  November  the  prisoner  had  no  more  than  that  oiie  account 
at  the  Bank,  his  private  account  having  been  closed  in  October, 
1878.  The  draft  for  £83  12s.  8d.  drawn  by  the  prisoner  was 
presented  at  the  Office  of  Works,  and  Mr.  Deighton  gave  his 
official  cheque  on  November  24  in  exchange  for  it,  and  got  a 
disbursement  of  that  sum.  On  November  19  the  prisoner  had 
drawn  a  cheque  against  the  amount  placed  to  his  credit  at  the 
Bank  under  the  authority  given  by  Mr.  Deighton.  That  cheque 
was  made  specially  payable  to  the  order  of  Mr.  Rodgers,  who 
was  then  engineer  of  the  Warwick  Waterworks.  Mr.  Rodgers 
endorsed  the  cheque,  and  got  it  cashed  at  the  Warwick  branch 
of  the  Q.N.  Bank,  and  with  the  proceeds  paid  the  wages  of  the 
men  in  the  Works  Department,  for  whose  benefit  the  prisoner 
was  authorised  to  draw  on  the  Q.N.  Bank  at  Ipswich.  On 
November  19  the  prisoner  drew  against  the  same  amount  two 
cheques  to  pay  private  creditors — one  for  £27  and  one  for  £15 — 
and  up  to  November  28  inclusive  he  had  drawn  against  the 
amount  cheques  in  favour  of  his  private  creditors,  aU  of  which  were 
duly  paid,  amounting  to  £67  15s.  The  prisoner's  cheque  drawn 
to  the  order  of  Rodgers  was  afterwards  presented  at  the  Ipswich 
branch  of  the  Bank  and  came  back  dishonoured,  and  at  the  time 
of  the  trial  stood  to  the  debit  of  Rodgers  in  the  books  of  the 
Warwick  branch.  The  prisoner  had  no  authority  from  the 
Government  to  open  a  pubhc  account  at  any  bank,  and  never 
accounted  in  any  way  for  the  application  of  the  money  which 
had  been  placed  to  his  credit.  In  summing  up  I  directed  the  jury 
that  it  was  not  enough  for  the  prisoner  to  show  that  the  person 
for  whose  benefit  the  money  paid  into  the  prisoner's  credit  was 
intended  had  been  paid  by  another  person  and  from  a  different 
source  ;  that  the  offence  charged  was  not  embezzlement,  but 
was  created  by  the  provisions  of  s.  49  of  the  Audit  Act ;  that 
under  that  statute  it  was  not  necessary  to  prove  any  felonious 
intent,  the  act  of  misappHcation  or  improper  disposal  being  suffici- 
ent to  satisfy  the  statute  ;  that  upon  this  information  they  had 
only  to  be  satisfied  that  by  virtue  of  such  employment  the  sum 
of  £83  12s.  8d.  came  into  his  possession  for  the  benefit  and  use  of 


CRIMINAL  EEPORTS,  1860—1907. 


119 


other  persons,  and  that  while  it  was  in  his  possession  he  unlawfully   ^-  '"■  Hiohoteld. 

misapplied  or  improperly  disposed  of  a  portion  of  it.     Mr.  Chubb, 

who  defended    the  prisoner,   objected  to  my  direction,   and  at 

his  request  I  reserve  for  the  consideration  of  the  Full  Court  the 

following  question  : — "  Was  I  right  or  wrong  in  my  direction 

to  the  jury  on  the  matters  of  law  contained  in  it  ?  "     The  prisoner 

was  convicted  and  sentenced  to  imprisonment,  with  hard  labour, 

in  Brisbane  Gaol,  where  he  now  remains. 

Chubb,  for  the  prisoner  :  There  must  be  a  fraudulent  mis- 
apphcation.  In  ss.  75,  76,  77  of  The  Larceny  Act  of  1865  (29 
Vic,  No.  6),  the  word  "  fraudulent "  is  used. 

Griffith  Q.C.,  for  the  Crown,  cited  B.  v.  Wynn,  1  Den.  365. 

Ltjtwyche  J.  mentioned  B.  v.  Dodwell,  4  S.C.R.  171. 

Habding  J.  mentioned  B.  v.  Prince,  L.R.  2  C.C.R.  154. 


LiLLEY  C.J.  :  The  Court  is  of  opinion  that  it  is  unnecessary  to 
allege  that  the  misapplication  was  fraudulent,  or  that  it  was  mis- 
apphed  or  improperly  disposed  of  with  any  intent  whatever. 

Conviction  affirmed. 

Solicitor  for  prisoner  :    C.  F.  Chubb. 


Lilley  C.J. 


[Full  Cottkt.] 

R.  V.  GOMEZ. 

[5  S.C.R.  189.] 

Criminal  law — Jurisdiction — Torres  Straits — Annexation  of  Islands 
—18  and  19  Vic,  c.  54,  s.  46—24  and  25  Vic,  s.  44—43  Vic, 
No.  1,  s.  1 — Prerogative  of  the  Crown — Letters  Patent — Murder. 

The  Supreme  Court  has  jurisdiction  over  islands  in  Torres  Straits  included  in 
the  area  described  in  the  Schedule  to  43  Vic,  No.  1,  annexed  pursuant  to  Letters 
Patent  issued  by  Her  Majesty  in  1872  and  1878,  and  the  proclamation  in  the 
Goitrnment  Gazette  of  21st  July,  1879. 

Cbown  Case  Resbbved  by  Sheppard  J. 

Maximo  Gomez,  alias  Pedro,  was  tried  at  Cooktown  on  the  30th 
April  for  the  murder  of  William  Clarke  at  Possession  Island  on  the 
24th  December,  1879.  The  jury  found  the  prisoner  guilty,  and 
sentence  of  death  was  passed  upon  him,  but  the  sentence  was 
respited,  certain  points  of  law  being  reserved.  The  island  where 
the  offence  was  committed  was  situated,  according  to  the  evidence 


1880-. 
1st  June. 

Lilley  C.J. 
Harding  J. 


120  QUEENSLAND   JUSTICE   OP  THE   PEACE. 

B.  V.  Gomez.  of  a  witness,  in  Torres  Straits,  and  was  distant  about  a  mile  aad 
a-half  from  the  mainland.  It  appeared  to  the  learned  judge  that 
the  jurisdiction  of  the  Court  depended  on  (1)  the  vaUdity  of  the 
Letters  Patent  issued  by  Her  Majesty  the  Queen,  dated  10th 
October,  1878  (upon  which  The  Queensland  Coast  Islands  Act  of 
1879  was  founded),  and  (2)  whether  the  islands,  being  situate 
within  a  marine  league  of  the  mainland  of  AustraUa,  the  Court 
had  jurisdiction  to  try  the  prisoner  independently  of  the  Letters 
Patent,  the  Act  of  Parliament  43  Vic,  No.  1,  and  the  subsequent 
proclamation  of  His  Excellency  the  Governor  published  in  the 
Government  Gazette  of  21st  July,  1879.  His  Honor  stated  in  the 
case  that  s.  2  of  3  and  4  Vic,  62,  gave  power  to  Her  Majesty  by 
Letters  Patent  to  erect  into  a  separate  colony,  or  colonies,  any 
islands  which  were,  or  which  thereafter  might  be,  comprised 
within,  and  dependencies  of  the  colony  of  New  South  Wales. 
By  s.  7  of  18  and  19  Vic,  c.  54,  Her  Majesty  had  also  power  to 
erect  into  a  separate  colony  or  colonies  any  territories  which 
might  be  separated  from  New  South  Wales  by  alteration  of  the 
northern  boundary  thereof  ;  and  by  s.  2  of  24  and  25  Vic,  c.  44, 
she  could,  by  Letters  Patent,  annex  to  any  colony  on  the  conti- 
nent of  Australia  any  territories  which  in  the  exercise  of  the 
powers  therein  mentioned  might  have  been  erected  into  a  separate 
colony.  The  difficulty  which  his  Honour  felt  was  as  to  the  legal 
effect  of  the  Letters  Patent  of  10th  October,  1878.  The  islands 
in  Torres  Straits  lying  between  the  continent  of  Australia  and 
the  island  of  New  Guinea  were  never  dependencies  of  or  reputed 
to  be  within  the  colony  of  New  South  Wales,  and  there  was  no 
Imperial  Act  giving  power  to  Her  Majesty  to  annex  to  this  colony 
any  islands  which  were  not  dependencies  of  New  South  Wales. 
He  was  not  aware  that  the  islands  in  Torres  Straits  had  ever  been 
taken  possession  of  on  behalf  of  the  British  Crown,  nor  did  the 
Letters  Patent  recite  that  such  possession  had  been  taken ;  and 
it  appeared  to  him  that  as  the  boundaries  had  been  defined  by 
Acts  of  the  Imperial  Parliament,  or  under  their  authority,  those 
boundaries  could  only  be  altered  by  an  Act  of  the  Imperial 
Parliament  or  by  the  exercise  of  some  power  conferred  by  the 
same  authority.  The  question  for  the  decision  of  the  Court  was 
whether,  under  the  circumstances,  the  Circuit  Court  at  Cooktown 
had  jurisdiction  to  try  the  prisoner. 

Pring,  A.G.,  for  the  Crown,  referred  to  the  Proclamation,  22nd 
August,  1872,  in  13  Government  Gazette  1324,  based  on  Letters 
Patent,  dated    30th    May,   1872,  with  regard  to  islands  within 


CRIMINAL   REPORTS,   1860—1907.  121 

sixty  miles  off  the  coast ;    Letters  Patent,  10th  October,  1878  ;       B-  "•  Gomez. 
Proclamation,  21st  July,  1879  ;    43  Vic,  No.  1. 

HAKDrsfG  J.,  referred  to  18  and  19  Vic,  c  54,  s.  46  (1  Pring  230.) 

Griffith  Q.C.  for  the  prisoner,  referred  to  the  Letters  Patent  of 
1862  (1  Pring  234),  3  and  4  Wm.  IV.,  c  62  (1  Pring  189)  ;  and 
submitted  the  questions  to  be  considered  were  (1)  whether  the 
island  in  question  was  affected  by  the  Letters  Patent  of  1872 
(ante)  ;  and  (2)  whether  the  boundaries  of  the  colony  should  be 
altered  by  Act  or  prerogative.  (Chitty  on  Prerogative,  p.  29  ; 
R.  V.  Jimmy,  4  S.C.R.  130  ;  Damodhar  Gordham  v.  Deoram  Kanji, 
1  App.  Gas.  332.) 

LiLLEY  C.J.  :  The  matter  appears  to  me  to  be  perfectly  clear  Lillej  C.J. 
and  I  should  be  very  sorry  for  it  to  go  forth  that  there  is  any 
doubt  as  to  the  jurisdiction  of  the  courts  of  the  colony  over  the 
islands  annexed  to  the  colony  by  the  Letters  Patent  of  1872  and 
1878.  It  might  be  taken  as  a  conclusion  of  fact  that  these  islands, 
up  to  the  time  Her  Majesty  assumeddominion  over  them,  were 
not  under  the  dominion  of  any  other  power,  nor  within  the  ter- 
ritories of  any  of  the  AustraHan  colonies  ;  that,  in  fact,  they  were 
islands  which  Her  Majesty  had  power  and  was  free  to  exercise 
diminion  over.  Nothing  can  be  clearer  from  a  long  chain  of 
history  and  practice  that  the  Queen  has  the  prerogative,  by 
Letters  Patent,  to  erect  unoccupied  lands  into  colonies.  She 
may  revoke  those  Letters  Patent,  or  extend  or  Hmit  the  juris- 
diction of  the  colony  so  erected;  in  fact,  she  has  absolute  power  to 
alter  in  any  way  the  limit  of  the  colony.  These  islands  are  in 
that  condition.  Her  Majesty  had  power  to  assume  control  over 
them.  She  has  done  so,  and  it  is  not  a  matter  which  the  Court  is 
at  liberty  to  dispute  that  in  issuing  these  Letters  Patent  she  has 
assumed  lawful  dominion  over  the  islands  therein  mentioned. 
The  only  question  as  to  the  vaHdity  of  the  proceeding  appears  to 
be  this  :  Can  Her  Majesty,  without  the  assent  of  the  Legislature, 
annex  these  lands  to  an  existing  colony  with  representative 
institutions  ?  Caution  had  been  observed  in  the  matter,  and  the 
islands  were  not  annexed  without  the  consent  of  the  Queensland 
Legislature.  The  last  of  the  Letters  Patent,  at  all  events,  were 
issued  upon  the  condition  that  a  statute  should  be  passed  by  the 
colonial  Legislature.  Her  Majesty's  assumption  of  dominion  is 
perfeclty  clear.  In  1872  she  created  the  Governor  of  this  colony 
the  Governor  of  these  islands,  making  provision  at  the  same  time 
for  becoming  a  part  of  the  territory  of  the  colony.     The  islands 


122 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


E.  V.  Gomez.      are  therefore  within  the  colony  of  Queensland,  subject  to  the 
LilieyC.J,        jurisdiction  of  the  Supreme  Court  of    this  colony,  and  the  con- 
viction must  be  upheld. 

Harding  J.  Haeding  J.  :   From  the  statutes  cited  it  is  seen  that  power  had 

been  given  to  annex  certain  islands  ;  but  we  find  nothing  enacted 
which  would  pervent  Her  Majesty  adding  other  islands  to  a 
colony  with  the  assent  of  the  local  Legislature.  Under  these 
circumstances  it  appears  to  me  that  Her  Majesty  had  the  power 
to  annex  these  islands,  and  that  that  power  has  been  properly 
exercised.  I  do  not  find  it  necessary  for  the  purposes  of  the 
present  decision  to  deal  with  the  other  point  in  the  case.  I  con- 
cur with  the  Chief  Justice  in  the  formal  judgment  he  has  dehverd. 

Conviction  affirmed. 


1881. 
10th  May. 


[Full  Cotjet.] 

REGINA  V.  CORVIE  AND  LESNINI. 

[1  Q.L.J.  1.— Note.— 31  Vic,  No.  13,  s.  65  is  repealed.     See  now  Justices  Act 

of  1886,  s.  11.] 

Caption — Admissibility  of  Depositions — 31    Vict.,  No.   13,  s.  65. 

!  To  make  the  depositions  of  a  deceased  person  admissible  as  evidence,  there 
is  no  necessity  for  a  general  caption.  The  requirements  of  the  statute,  31  Vic, 
No.  13,  s.  65,  may  be  shown  to  have  been  complied  with,  from  the  whole 
depositions. 

The  facts  of  this  case  are  briefly  these  : — 

The  prisoners,  Corvie  and  Lesnini,  were  charged  at  Gympie 
in  December,  1880,  with  an  '''  attempt  to  murder  "  one  Grisostolo. 
Grisostolo  died  in  January,  1881,  and  the  prisoners  were  tried  at 
the  Maryborough  Circuit  Court  before  Mr.  Justice  Pring  in  April 
last,  for  the  murder.  The  principal  evidence  against  the  prisoners 
were  the  depositions  of  Grisostolo.  At  the  trial,  Corvie  was 
defended  by  Tozer  (soUcitor),  Lesnini,  by  Murray-Prior.  At  the 
request  of  Prior  and  Tozer,  Mr.  Justice  Pring  reserved  a  case  for 
the  decision  of  the  Full  Court.  The  depositions  were  objected  to 
as  inadmissible  evidence,  principally,  because  there  was  no 
proper  caption  within  the  statute. 

The  caption  was  in  this  form  in  each  case  : — 

"  Gympie,     [25th]     30th  December,  1880. 
(Before     J.  Farrelly,     J.P.) 

Augustus  Corvie,  [Stephano  Lesnini]  charged  with  an  attempt 


CRIMINAL  REPORTS,  1860-1907.  125 

to  murder  one  Celeste  Grisostolo."     It  was  proved  at  the  trial  Regina  «.  Cobvie. 

,  .  ^  AND   LeSNINI. 

that  Grisostolo  was  dead — that  each  prisoner  was  charged  before  

a  justice  of  the  peace  with  having  attempted  to  murder  Grisostolo 
— that  the  deceased  Grisostolo  on  each  occasion,  gave  his  evidence 
before  a  justice  of  the  peace  in  the  presence  of  the  accused — 
that  the  evidence  was  taken  on  oath  and  that  each  prisoner  ha_d 
opportunity  of  cross-examination.  Mr.  Justice  Pring  admitted 
the  depositions  against  the  prisoners,  who  were  found  guilty  of 
manslaughter,  subject  to  the  opinion  of  the  EuU  Court  as  to  the 
admissibility  of  the  evidence." 

Attorney-General  for  the  Crown. 

Murray  Prior  argued  for  Lesnini — and  cited  Reg.  v.  Newton, 
1  F.  and  F.  641  ;    Reg.  v.  Oalvin,  10  Cox  C.C.  198. 

The  Court  decided  that  the  objections  raised  were  not  good  in 
law  ;  and  that  the  depositions  were  rightly  admitted.  There  is 
no  necessity  that  the  caption  to  depositions  should  be  exactly 
similar  to  the  form  given  under  s.  65  of  31  Vict.,  No.  13 — provided 
it  be  substantially  the  same.  The  requirements  of  the  statute 
may  be  shown  to  have  been  complied  with  from  the  whole  depo- 
sitions, not  merely  from  the  caption.  Though  thus  there  is  no 
necessity  for  a  general  caption,  still  it  is  desirable  that  the  forms 
given  by  the  statute  should  be  complied  with.  That  taking  the 
depositions  from  beginning  to  end,  the  statute  has  been  comphed 
with. 

Judgment  affirmed  against  both  prisoners. 

Solicitor  :    F.  I,  Power,  Gympie. 


[Maeybokough  Ciecuit  Court.] 

R.  V.  KENNEDY  AND  ROYSTON.) 

[1  Q.L.J.  12.] 

In  the  case  of  R.  v.  Kennedy  and  Royston,  where  Kennedy,  1881. 

who  was  first  on  the  information  was  undefended,  and  Royston        28thApi-il. 
was  defended  by  counsel.  His  Honor  held  that  it  was  the  practice         PHng  J. 
of  this  colony,  if  no  witnesses  were  called  for  the  defence  of -either 
prisoner,  that  the  undefended  prisoner  (in  this  case  Kennedy), 
being  first  on  the  information,  had  the  right  of  first  addressing 
the  Court  and  jury. 


124  QUEENSLAND  JUSTICE  OP  THE  PEACE. 

[In  Chambbes.J 

THE  QUEEN  v.  LOUIS  HUSTIN,  CALLED  LOUIS  JOSEPH 

WATIER. 

n  Q.L.J.  16 — Note. — See  Commonwealth  Extradition  Act  (No.  12  of  1903).] 

1881. 
8th  lOih  15th  Extradition  Acts  of  1870  and  1873,  and  the  Extradition  Act  (Queensland)  1877, 

June.  and  Extradition  Treaty  with  Eranoe. 

Pring  J.  On  the  application  of  G.  E.  Markwell,  solicitor  for  Louis  Hustin, 

a  confinee  in  Brisbane  gaol,  made  on  the  8th  June,  Pring  J., 
granted  a  writ  of  habeas  corpus,  commanding  F.  R.  Bernard, 
keeper  of  H.M.  gaol  at  Brisbane,  to  produce  the  body  of  Hustin 
in  court  on  the  10th  instant. 

On  the  said  10th  day  of  June,  Mr.  Bernard  having  produced 
the  body,  as  commanded,  and  also  the  writ .  of  commitment, 
Markwell  moved  the  discharge  of  the  prisoner  on  the  several 
grounds  as  contained  in  the  affidavit  of  Hustin,  which  are  fuUy 
set  out  in  His  Honor's  judgment  infra  : — 

Cooper  A.G.,  for  the  Crown,  submitted  that  under  article  16  of 
the  treaty,  which  provides  that  "  the  requisition  for  the  surrender 
of  a  fugitive  criminal  who  has  taken  refuge  in  a  colony  or  foreign 
possession  of  either  party,  shall  he  made  to  the  Governor  or  chief 
authority  of  such  colony  or  possession  ;  or  if  the  fugitive  has  escaped 
from  a  colony  or  foreign  possession  of  the  party  on  whose  behalf  the 
requisition  is  ynade,  by  the  Governor  or  chief  authority  of  such  colony 
or  possession,"  any  of  the  persons  mentioned  in  the  article  might 
make  the  requisition,  where  the  prisoner  has  escaped  from  a 
colony  ;  that  if  the  Governor  of  the  colony  was  the  only  person 
who  could  make  the  requisition,  the  words  "  Escaped  from  a 
colony  "  could  apply  only  to  cases  where  the  prisoner  had  been 
sentenced  by  the  local  authorities  in  the  colony,  otherwise  there 
would  be  no  reason  why  the  Governor  could  alone  make  the 
requisition. 

As  to  the  vaHdity  of  the  warrant  for  arrest,  he  submitted  that 
under  article  7  of  the  treaty,  and  s.  17  (2)  of  The  Extradition  Act 
of  1870,  the  Governor  of  a  British  colony  has  the  same  power  as  a 
police  magistrate  in  England  has  under  the  Act ;  and  that  there- 
fore when  once  the  prisoner  has  been  arrested  under  the  warrant 
of  the  Governor  and  brought  before  the  PoUce  Magistrate,  he  had 
jurisdiction  to  hear  the  case  ;  and  further  that  it  was  not  neces- 
sary that  he  (the  P.M.)  should  have  sufficient  evidence  that  the 
prisoner  had  been  sentenced  for  the  particular  crime  charged  in 
the  warrant ;  it  would  be  sufficient  if  he  were  found  to  have  been 
sentenced  for  any  extraditable  offence. 


CEIMINAL  REPOETS,   1860-1907. 


125 


Peing  J.  reserved  his  decision  till  the  15th  instant,  and  on  that 
day  he  delivered  the  following  judgemnt : — 

Louis  Hustin,  called  Louis  Joseph  Watier,  was  brought  before 
me  on  Friday,  the  10th  instant,  by  P.  R.  Bernard,  keeper  of  Her 
Majesty's  goal,  Brisbane,  in  obedience  to  a  writ  of  habeas  corpus, 
ordered  by  me  on  the  8th  instant  to  be  issued  on  the  application 
of  Mr.  G.  Markwell  for  the  confinee,  which  writ  was  made  return- 
able before  myself.  Mr.  Bernard  handed  in  the  writ  and  the 
return  which  I  ordered  to  be  filed.  The  return  was  a  warrant  of 
committal  of  Louis  Joseph  Watier,  under  the  hand  and  seal  of 
Phihp  Pinnock,  Police  Magistrate,  of  Brisbane,  and  was  as  fol- 
lows : — 

QITEBNSLAND   TO   WIT. 

To  Jlichael  Doyle,  constable,  and  to  all  other  constables  of  the  Queensland 
Police  Force,  and  to  the  keeper  of  the  Brisbane  Gaol. 

Be  it  remembered  that  on  the  26th  day  of  May,  in  the  year  of  our  Lord  1881, 
Louis  Joseph  Watier,  late  of  the  colony  of  New  Caledonia,  a  colony  or  possession 
of  the  realm  of  France,  is  brought  before  me,  Philip  Pinnock,  Esq.,  Police  Magistrate 
for  Brisbane,  sitting  at  the  Police  Court  at  Brisbane,  to  show  cause  why  he  should 
not  be  surrendered  in  pursuance  of  the  Extradition  Acts  of  1870  and  1873,  and 
of  a  treaty  entered  into  on  the  14th  day  of  August,  1876,  between  Her  Majesty 
and  the  then  President  of  the  French  Republic,  on  the  ground  of  his  being  con- 
victed of  the  commission  of  the  crime  of  fraudulent  bankruptcy  and  forgery, 
and  uttering  within  the  jurisdiction  of  the  realm  of  France.  And  forasmuch  as 
no  sufficient  cause  has  been  shown  to  me  why  he  should  not  be  surrendered  in 
pursuance  of  the  said  acts  and  treaty, — 

This  is  therefore  to  command  you,  the  said  Michael  Doyle,  and  to  all  other 
police  officers  in  the  said  colony,  in  Her  Majesty's  name  forthwith  to  convey 
and  deliver  the  body  of  the  said  Louis  Joseph  Watier  into  the  custody  of  the 
said  keeper  of  the  gaol  at  Brisbane  aforesaid,  and  you  the  said  keeper  to  receive 
the  said  Louis  Joseph  Watier  into  your  custody,  and  him  there  safely  to  keep  until 
he  is  thence  delivered  pursuant  to  the  provisions  of  the  said  Extradition  Acts 
and  treaty,  for  which  this  shall  be  your  warrant. 

Given  under  my  hand  and  seal  at  Brisbane,  in  the  said  colony  of  Queensland, 
this  26th  day  of  May,  a.d.  1881. 

Philip  Pinnock,  Police  Magistrate. 

Mr.  G.  Markwell  then  moved  for  the  discharge  of  the  confinee, 
and  sought  to  impeach  the  return  on  several  grounds  which  are 
set  forth  in  the  affidavit  of  the  confinee,  and  he  referred  to  this 
affidavit,  an  affidavit  of  Tom  Else,  verifying  an  attached  copy  of 
proceedings  taken  before  the  Police  Magistrate,  and  an  affidavit 
of  G.  Markwell,  verifying  attached  copies  of  a  warrant  under  the 
hand  and  seal  of  Sir  A.  E.  Kennedy,  Governor  of  Queensland, 
and  of  a  warrant  of  committal  under  the  hand  and  seal  of  Phihp 


The  Qdeen  u. 
LoDis  HnsTiN, 

CALLED    Louis 

Joseph  Watiek. 
Pring  J. 


126  QUEENSLAND   JUSTICE    OP   THE   PEACE. 

The  Qdeen  r.     Pinnock,  Police  Magistrate,  of  Brisbane,  which  affidavits  had  been 

LOUIB  HUSTIN,  °  i-  1 

CALLED  Louis      filed  and  used  on  the  application  for  the  writ.  Mr.   Attorney- 

JosEPH  Watieb.    Qenerai  (Pope  Cooper)  appeared  for  the  Crown,  and  making  no 

Pring  J.         objection,  I  allowed  these  affidavits  to  be  used.  The  'objections 
above  referred  to  are  as  follows  : — 

That  the  commitment  is  illegal  on  the  following  grounds : — 

1.  The  requisition  for  my  surrender  was  not  made  in  accordance  with  the 
provisions  of  the  16th  article  of  the  Extradition  Treaty,  but  was  made  by  Edward 
Barrow  Forrest,  the  vice-consul  of  the  Republic  of  France,  stationed  in  Brisbane, 
and  the  said  vice-consul  made  his  requisition  for  my  surrender  to  His  Excellency 
the  Governor  of  Queensland,  whereas  the  said  requistion  should  have  been  made 
to  His  Excellency  the  Governor  aforesaid  by  the  Governor  or  chief  authority  of 
New  Caledonia. 

2.  The  said  warrant  states  that  I  was  convicted  of  the  commission  of  the  crime 
of  robbery,  but  there  is  not  the  least  evidence  against  Louis  Joseph  Watier  to 
that  effect.  And  the  evidence  adduced  shows  that  Louis  Joseph  Watier  was 
detained  in  New  Caledonia  on  the  charge  of  fraudulent  bankruptcy  and  falsification 
of  documents. 

3.  That  the  nature  of  the  particular  offence  against  the  bankruptcy  laws  of 
France  is  not  set  forth,  so  that  it  is  impossible  to  say  whether  it  is  of  such  a  nature 
as  would  be  deemed  an  offence  against  the  bankruptcy  laws  of  this  colony. 

4.  That  falsification  of  documents  is  not  a  crime  set  forth  in  the  said  Extradition 
Treaty. 

5.  Under  article  7  of  the  said  treaty  it  is  provided  that  the  warrant  shall  clearly 
set  forth  the  crime  of  which  the  person  claimed  has  been  convicted,  and  state  the 
fact,  place,  and  date  of  his  conviction  ;  and  I  say  that  the  warrant  of  His  Excellency 
aforesaid,  by  virtue  of  which  I  am  now  in  custody,  does  not  state  the  date  of  the 
alleged  conviction  against  me. 

At  the  time  I  allowed  these  affidavits  to  be  received  I  was  of 
opinion  that  they  were  not  admissible  to  impeach  the  return,  but 
I  thought  they  might  be  admissible  for  the  purpose  of  showing  a 
want  or  excess  of  jurisdiction  in  the  PoUce  Magistrate.  The 
warrant  of  committal  (the  return)  is  in  the  form  set  forth  in  the 
second  schedule  to  The  Extradition  Act  of  1870,  and  by  s.  20  of 
this  Act,  this  form  of  committal,  when  used,  shall  be  deemed  to  be 
valid  and  sufficient  in  law.  I  am  of  opinion,  therefore,  that  the 
return  is  good  on  the  face  of  it,  and  I  decline  to  use  the  affidavits 
for  the  purpose  of  impeaching  this  return,  as  I  think  they  are 
inadmissible  for  that  purpose.  This  is  a  case  which  comes  within 
the  statute  31  of  Car.  2,  c.  2,  and  the  cases  show  that  the  Court 
will  not  receive  affidavits  impeaching  the  return.  {See  case  of 
The  Sheriff  of  Middlesex,  2  A.  and  E.,  p.  273  ;  in  the  matter  of 
Clarke,  2  Q.B.,  p.  619  ;   Brennan's  case,  10  Q.B.,  p.  439,  and  Carus 


CRIMINAL  REPOETS,  1860-1907.  127 

Wilson's  case,  1  Q.B.  984,  and  the  judgment  of  Lord  Denham,     ?^=  Q??^"  "• 

JO  )      Louis  Hustin, 

CJ .,  p.  1008.)     Unless,  therefore,  it  can  be  proved  by  the  affidavits      called  Lodis 
that  there  has  been  a  want  or  excess  of  jurisdiction,  as  I  hold  the    Joseph  Watieb. 
return  to  be  good,  this  motion  must  be  discharged,  and  the  con-  Pring  J. 

finee,  Louis  Joseph  Watier,  will  be  remanded.  I  find  no  facts 
disclosed  in  the  affidavits  which  would  warrant  me  in  deciding 
that  in  this  case  there  was  either  a  want  or  excess  of  jurisdiction. 
The  confinee  was  arrested  by  virtue  of  a  warrant  under  the  hand 
and  seal  of  Sir  Arthur  Kennedy,  Governor  of  Queensland,  and  this 
warrant  is  as  follows  : — 

By  His  Excellency  Sir  Arthur  Edward  Kennedy,  Knight  Commander  of  the 
3Iost  Distinguished  Order  of  Saint  Michael  and  Saint  George,  Companion  of  the 
Most  Distinguished  Order  of  the  Bath,  Governor  and  Commander-in-Chief  of  the 
Colony  of  Queensland  and  its  dependencies. 

To  all  and  each  of  the  constables  of  the  police  force  of  Queensland. 

Whereas  a  treaty  was  concluded  on  the  14th  day  of  August,  1876,  between  Her 
Majesty  and  the  then  President  of  the  Fiench  Republic  for  the  mutual  extradition 
of  fugitive  criminals.  And  whereas,  by  an  Order-in-Council  of  the  16th  day  of 
August,  1878,  setting  forth  the  said  treaty.  Her  said  Majesty,  by  and  with  the 
advice  of  Her  Privy  Council,  under  and  by  virtue  of  the  authority  committed  to 
Her  by  the  Extradition  Acts  of  1870  and  1873,  did  order,  and  it  was  thereby 
ordered,  that  from  and  after  the  31st  day  of  May,  1878,  the  said  recited  Acts 
should  apply  in  the  case  of  the  said  treaty  with  the  President  of  the  French 
Republic.  And  whereas  in  pursuance  of  the  said  treaty  and  the  aforesaid  Acts 
a  requisition  has  been  made  to  me.  Sir  Arthur  Edward  Kennedy,  Knight,  Governor 
of  the  colony  aforesaid,  by  Edward  Barrow  Forrest,  Esquire,  whom  I,  the  Governor 
aforesaid,  recognise  as  vice-consul  for  France  in  Queensland,  for  the  siu-render 
of  Louis  Joseph  Watier,  late  of  the  colony  of  New  Caledonia,  a  colony  or  possession 
of  the  realm  of  France,  convicted  of  the  commission  of  the  crime  of  robbery  within 
the  jurisdiction  of  the  said  realm  of  France.  These  are  therefore  to  command 
you  forthwith,  in  Her  Majesty's  name,  to  apprehend  the  said  Louis  Joseph  Watier, 
wherever  he  may  be  found  in  the  colony  of  Queensland,  and  bring  him  before  the 
Police  Magistrate  at  Brisbane,  in  the  said  colony,  to  show  cause  why  he  should 
not  be  surrendered  in  pursuance  of  the  aforesaid  treaty  and  Ascts,  for  which  this 
shall  be  yom-  warrant. 

Given  under  my  hand  and  seal,  at  Toowoomba,  this  14th  day  of  April,  in  the 
year  of  our  Lord  1881,  and  in  the  forty-fourth  year  of  Her  Majesty's  reign. 

A.  E.  Kennedy. 

He  was  then  taken  before  the  Police  Magistrate  of  Brisbane 
(Mr.  Pinnock),  and  charged  with  escaping  from  the  settlement  of 
New  Caledonia.  It  appears  to  me  that  under  The  Extradition 
Acts  of  1870  and  1873,  and  The  Extradition  Act  (Queensland)  1877, 
and  the  Extradition  Treaty  with  France,  that  the  Governor's 
warrant  for  the  confinee's  arrest  was  good,  and  that  the  Police 


128 


QUEENSLAND   JUSTICE   OF  THE   PEACE. 


The  Queen  v. 

LoDis  Hdstin, 

called  lodis 

Joseph  Watieb. 

Pring  J. 


Magistrate,  when  the  confinee  was  brought  before  him  to  be  dealt 
with  under  these  Acts  and  this  treaty,  was,  so  to  say,  seized  of  the 
case,  and  had  jurisdiction  to  hear  and  adjudge  upon  it.  By  sub- 
section 2  of  the  17th  section  of  The  Extradition  Act  of  1870,  it  is 
provided  in  reference  to  proceedings  to  be  taken  as  to  fugitive 
criminals  in  British  Possessions,  that  "  No  warrant  of  a  Secretary 
of  State  shall  be  required,  and  all  powers  vested  in  or  acts  author- 
ised or  required  to  be  done  under  this  Act  by  the  Pohce  Magis- 
trate and  the  Secretary  of  State,  or  either  of  them,  in  relation  to 
the  surrender  of  a  fugitive  criminal  may  be  done  by  the  Governor 
of  the  British  Possession  alone."  Since  The  Extradition  Act 
(Queensland)  1877  has  by  Order-in-Council  become  law,  the  mode 
of  procedure  required  by  the  Acts  and  treaty  to  be  followed  by  the 
Secretary  of  State  and  Pohce  Magistrates  in  England  would  be  the 
most  expedient  course  to  follow  (which  course  of  procedure  I 
indicated  during  the  argument).  I  do  not  think,  however,  that 
the  power  conferred  on  the  Governor  by  s.  17  (2)  of  The  Extradi- 
tion Act  of  1 870  is  taken  away.  The  warrant  of  arrest  in  this  case 
I  hold  to  be  good  in  this  respect.  With  regard  to  the  first  objec- 
tion, I  decide  that  Mr.  E.  B.  Forrest,  being  recognised  by  the 
Governor  as  vice-consul  of  France  in  this  Colony,  had  authority 
to  make  the  requisition  for  the  surrender  of  the  fugitive  criminal, 
Louis  Joseph  Watier.  Subsection  1  of  section  17  of  The  Extradi- 
tion Act  of  1870,  and  article  16  of  the  treaty,  give  power  to  a 
Governor  in  a  colony  to  make  the  requisition,  but  this,  however, 
does  not,  I  think,  interfere  with  the  power  given  to  a  consul  or 
vice-consul  by  the  same  subsection  and  article.  The  first  objection 
therefore  is  bad.  The  other  objections  appear  to  me  to  go  to  the 
judgment  and  decision  of  the  Pohce  Magistrate,  which  I  do  not 
feel  myself  at  liberty  to  review.  The  formal  judgment  is  that 
this  motion  be  discharged,  that  the  writ  of  habeas  corpus  be 
quashed,  and  that  the  confinee  Louis  Joseph  Watier  be  remanded 
to  his  former  custody,  under  the  warrant  of  committal  exhibited 
and  filed  as  the  return  to  the  writ. 


CRIMINAL  REPOETS,  1860-1907. 


129 


[Full  Court.] 

CUNNINGHAM  v.  McFARLANE  AND  ANOTHER. 

[1  Q.L.J.  49.— Note.— 17  Vic,  No.  3,  is  repealed.    See  now  s.  445  of  Criminal  Code.] 

Cattle  Stealing  Prevention  Act  (17  Vict.,  No.  3). 

To  support  a  conviction  for  illegally  using  an  animal  under  The  CatUe  Stealing 
Prevention  Act  (17  Vict.,  No.  3),  the  user  must  commence  by  trespass. 

Motion  to  make  absolute  a  rule  nisi  for  a  prohibition  granted 
by  His  Honour  The  Chief  Justice,  at  the  instance  of  John  Cunning- 
ham against  H.  T.  McFarlane  (Acting  P.M.  at  Roma)  and  W.  S. 
Paul,  of  the  firm  of  Sloane  &  Co.  Cunningham  was  in  charge  of 
a  flock  of  20,000  sheep  belonging  to  Sloane  &  Co.,  and  when  he 
arrived  in  the  neighbourhood  of  Roma  he  was  superseded  by  one 
Jones.  Jones  found  him  in  a  pubUc  house,  and  produced  a 
document  countermanding  Cunningham's  authority.  Jones ' 
asked  if  there  was  any  horse  at  the  pubUc  house  belonging  to 
Sloane  &  Co.  A  horse  was  brought  round  which  was  identified 
as  belonging  to  Sloane  &  Co.,  and  Jones  thereupon  proceeded  to 
remove  the  saddle  and  bridle,  the  property  of  Cunningham. 
Cunningham  then  interfered,  mounted  the  horse  and  rode  away. 
Cunningham,  on  his  way  to  Roma,  met  Paul,  who  demanded 
possession  of  the  horse,  but  refused  to  produce  his  authority, 
stating  that  he  was  Sloane  &  Co.  Cunningham,  who  had  been 
appointed  by  one  Kilgour,  the  New  South  Wales  representative 
of  Sloane  &  Co.,  refused  to  recognise  Paul,  and  rode  away  towards 
Roma.  Paul  followed,  and  in  Roma  endeavoured  to  obtain 
possession  of  the  horse,  and  eventually  gave  Cunningham  in  charge 
for  illegally  using,  Cunningham,  according  to  his  account,  having 
ridden  the  horse  in  order  to  pay  the  wages  of  a  man  who  had  been 
employed  with  the  sheep.  At  the  time  of  his  arrest  no  actual 
deUvery  of  the  sheep  to  Jones  had  taked  place.  Cunningham  was 
fined  £2  by  the  Roma  Bench.  The  rule  was  granted  upon  the 
following  grounds,  viz.  : — (1)  That  there  was  no  evidence  tp  show 
that  Cunningham  had  used  the  horse  for  his  own  pleasure,  con- 
venience, or  profit,  and  (2)  That  he  made  a  bona  fide  claim  to  be  in 
lawful  possession  of  it. 

Power  moved  the  rule  absolute. 

Griffith  Q.C.  {Ringrose  with  him)  showed  cause  on  behalf  of 
Paul,  and  submitted  that  at  the  time  the  offence  was  charged  the 
horse  was  in  the  possession  of  Sloane  &  Co.,  by  their  agent,  Jones, 
who  had  taken  possession  of  it  at  the  pubhc  house — that  there 


1881. 
December. 

Lilley  C.J. 
Harding  J. 
Pring  J. 


130 


QUEENSLAND  JUSTICE  OP  THE  PEACE. 


cunninoham  v. 
McFablane 

AND  AnoIHEB. 


Harding  J. 


Pring  J. 


was  a  sufficient  determination  of  the  bailment,  and  the  horse 
being  in  the  physical  possession  of  Sloane  &  Co.'s  agent,  Cunning- 
ham was  guilty  of  an  offence  against  the  statute. 

He  quoted  The  Queen  v.  Steer  (1  Denison's  Crown  Cases,  349)., 
and  submitted  that  there  was  ample  evidence  from  which  the 
justices  might  find  that  the  offence  had  been  committed,  the  only 
question  was  whether  the  bailment  had  been  determined.  If  it 
had  been  he  was  using  the  horse  for  his  own  pleasure,  convenience, 
or  profit,  and  that  a  deliberate  trespass  of  this  kind  was  an  offence 
against  the  statute,  and  that  the  rule  should  be  discharged. 

Habding  J.  :  This  case  comes  before  us  on  motion  to  make 
absolute  a  rule  nisi  for  a  prohibition  obtained  from  the  Chief 
Justice  against  a  conviction  made  by  certain  magistrates  against 
one  Cunningham  for  the  unlawful  user  of  a  horse  under  The  Cattle 
Stealing  Prevention  Act.  As  I  gather  from  the  facts,  Cunningham 
was  in  possession  of  this  horse  and  certain  sheep  and  their  appli- 
ances, lawfully.  It  was  alleged  that  an  agent  of  the  owners  had 
been  appointed  to  retake  possession  of  these  sheep  and  horse 
from  Cunningham  ;  that  Cunningham  was,  undoubtedly,  immedi- 
ately previous  to  the  attempt  to  take  possession,  in  possession  of 
a  certain  horse.  I  think  that  the  evidence  shows  nothing  further 
than  an  attempt  to  regain  possession  of  this  horse  from  the  agent, 
and  that  if  it  does  that,  Cunningham  had  not  admitted  the  ap- 
pointment of  the  agent,  which  was  in  dispute,  and  consequently 
there  was  a  bona  fide  claim  made  to  the  horse  by  Cunningham, 
which  at  the  time  the  possession  was  alleged  to  be  regained  by 
the  agent  had  not  determined.  Unless  the  horse  were  taken 
from  the  possession  of  a  third  party  the  party  using  it  would  not 
be  liable  under  this  Act,  in  other  words,  as  said  by  the  Chief 
Justice,  the  user  must  commence  by  trespass.  The  rule  must 
therefore  be  made  absolute,  with  costs  against  Paul. 

Peing  J.  :  I  am  of  the  same  opinion.  I  think  the  possession 
was  never  out  of  Cuiuiingham  to  such  an  extent  as  to  warrant  the 
action  taken  in  this  matter.  The  Act  was  never  passed  to  meet 
such  a  case  as  this.     Rule  absolute,  with  costs  against  Paul. 

Solicitor  for  Cunningham :  Chambers,  agent  for  F.  H.  P. 
Thompson,  Roma. 

Solicitors  for  Paul :   Little,  Browne,  <fe  Ruthning. 


CEIMINAL  REPOETS,  1860-1907.  131 

[Full  Cotjbt.] 
REGINA  V.  GASH. 

[1  Q.L.J.  54. — Note. — Offences  agiunst  the  Person  Act,  s.  49,  is  repealed.    See  now 
s.  215  of  Criminal  Code.] 

Offences  against  the  Person  Act,  s.  49,  ^^**l- 

6lh  December. 
Where  an  information  contains  in  the  very  language  of  the  statute  a  charge  of  

misdemeanour,  except  in  respect  to  the  introduction  of  the  word  feloniously,         Ltlley  G.J. 

and  there  is  no  language  that  would  contain  a  substantive  crime  in  the  nature  of    

ielony,  the  word  fdoniously  will  be  rejected  as  surplusage. 

Crown  Case  Reserved. 

This  was  a  special  case  stated  by  Mr.  Justice  Harding. 

The  prisoner  was  tried  at  the  Brisbane  Criminal  Sittings,  on 
the  2nd  December  last,  upon  an  information  charging  him  that 
he,  on  the  23rd  of  August,  1881,  at  the  South  Pine  River,  in  and 
upon  one  Martha  Chesterfield,  a  girl  under  the  age  of  twelve 
years,  to  wit,  of  the  age  of  eleven  years  and  eight  months,  felon- 
iously did  make  an  assault,  and  her,  the  said  Martha  Chesterfield, 
then  feloniously  did  unlawfully  and  carnally  know  and  abuse. 
The  Attorney-General  opened  the  case  as  an  offence  defined  in 
s.  49  of  the  Offences  against  the  Person  Act,  and  the  case  was  so 
treated  throughout  the  trial  by  the  Judge  and  counsel  upon 
both  sides,  Mr.  Swanwick  appeared  for  the  prisoner.  Martha 
Chesterfield  was  examined  and  cross-examined.  In  her  examina- 
tion in  chief  she  stated  that  she  was  twelve  last  Monday,  and 
gave  the  names  of  her  parents,  brothers,  and  sisters,  and  other 
particulars.  A  duly  certified  copy  of  an  entry  in  a  Register  of 
Births,  kept  in  the  General  Registry  Office,  Brisbane,  was  tendered 
by  the  Attorney-General  and  received  in  evidence  without  objec- 
tion. The  entry  was  of  a  birth  on  the  28th  November,  1869, 
at  German  Station  Road,  of  a  female  child  named  Martha,  whose 
parents'  names  were  Thomas  and  Mary  Anne  Chesterfield.  It 
also  contained  the  names  and  ages  of  their  other  children, 
agreeing  in  such  particulars  with  the  statement  of  Martha 
Chesterfield.  Mary  Anne  Chesterfield  (the  mother)  was  examined, 
and  referred  to  Martha  as  one  of  her  children.  On  one  or  two 
occasions  German  Station  was  mentioned  as  a  former  residence 
of  the  family.  In  charging  the  jury  His  Honor  told  them  that  the 
above  was  all  the  evidence  as  to  Martha's  age  before  them,  and 
that  if  they  were  satisfied  of  her  identity  with  the  person  named 
Martha  in  the  certificate  of  birth  from  a  consideration  of  the 
facts  above  stated,  her  age  was  fixed  thereby,  but  they  must  be 


132  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

Kegina  v.  Gash,  satisfied  that  her  age  was  between  ten  and  twelve  years,  or  find 
the  prisoner  not  guilty..  After  the  jury  retired,  Mr.  Swan  wick 
called  His  Honor's  attention  to  the  fact  that  he  had  not  told  the 
jury  that  there  was  no  evidence  of  the  identity  of  the  person  in  the 
certificate  with  Martha,  and  asked  His  Honor  to  reserve  the  point 
for  the  consideration  of  the  Full  Court.  The  jury  found  the 
prisoner  guilty.  Mr.  Swanwick  moved  the  arrest  of  judgment  on 
the  following  grounds  : — (1)  That  the  information  charged  the 
prisoner  with  a  felony,  and  the  crime  of  which  he  had  been  found 
guilty  under  the  49th  section  was  a  misdemeanour  by  statute. 
(2)  The  prisoner  being  charged  with  a  felony  by  the  Crown,  the 
jury  had  left  the  Court,  not  in  charge  of  any  officer  of  the  Court, 
after  the  information  was  exhibited  and  before  the  verdict. 
These  points  were  not  raised  or  urged  to  the  jury  at  all,  or  to  the 
Court,  until  the  times  mentioned.  His  Honor  postponed  judgment 
until  the  questions  should  have  been  considered  by  the  Full  Court. 

The  Attorney-General  appeared  in  support  of  the  conviction. 

There  was  no  appearance  on  behalf  of  the  prisoner. 

With  regard  to  the  first  point  the  Court  held  that,  inasmuch 
as  nothing  was  said  to  the  jury,  and  no  objection  raised  by  the 
prisoner's  counsel  during  the  trial,  he  must  be  taken  to  have 
accepted  the  evidence  regarding  the  girl's  age  as  sufficient.  It 
could  not  allow  counsel  to  lie  by,  they  must  deal  fairly  and 
candidly  with  the  Court.  But  independently  of  that  there  was 
evidence  to  go  to  the  jury  as  to  the  girl's  age. 

As  to  the  second  point.  The  Attorney-General  submitted  that 
the  word  feloniously,  in  the  information,  was  mere  surplusage. 

The  Chief  Justice  referred  to  the  case  of  the  Queen  v.  Wilkie,. 
the  converse  of  this,  in  which  the  Judge  (Lutwyche  J.)  at  the 
trial,  upon  his  own  motion,  struck  out  the  word  feloniously  in 
the  information  as  unnecessary.  The  man  was  convicted  of 
felony,  the  information  containing  a  concise  description  of  the 
offence,  but  the  word  feloniously  was  omitted  because  the  Judge 
struck  it  out.  The  case  came  before  the  Full  Court  (Cockle  C.J., 
and  Lutwyche  J.),  and  it  was  held  that  the  word  feloniously 
was  a  word  of  art,  and  should  have  been  put  in,  and  the  prisoner 
was  discharged. 

The  Attorney-General  quoted  Scofield's  case  (2  East's  Pleas 
of  the  Court,  1029),  in  which  case  it  was  held  that  the  insertion 
of  the  word  feloniously  did  not  constitute  a  felony,  and  if  the 
offence  charged  amounted  to  a  misdemeanour  and  not  a  felony^ 


CEIMINAL  REPOETS,   1860-1907.  133 

the  prisoner  would  be  properly  convicted  and  the  word  feloniously   ^''Egina  v.  Gash. 
rejected  as  surplusage,  and  submitted  that  the  defect  was  cured 
by  the  verdict,  because  the  jury  must  have  found  the  act  to  have 
been  urLla^\iul — that  everything  necessary  to  found  a  charge  of 
misdemeanor  had  been  done. 

The  Court  reserved  judgment  merely  on  the  question  of  the 
word  feloniotisly  having  been  used. 

LiLLEY  C.J.  :  I  have  had  the  opportunity  of  considering  the  Lilley  C.J. 
point  made  by  the  counsel  for  the  prisoner.  The  facts  appear 
to  be  clearly  these.  Until  the  close  of  the  trial  no  one  averted  to 
the  fact  that  the  word  feloniously  had  been  introduced  into  the 
information  at  aU.  The  man  suffered  no  disadvantage  whatever, 
but  was  tried  without  a  word  of  comment  or  objection  for  the 
substantive  misdemeanor  under  the  statute.  The  section  of  the 
statute  was  used,  and  the  information  contains  in  the  very  language 
of  the  statute  a  charge  of  misdemeanor,  except  in  respect  of  the 
introduction  of  the  word  feloniously.  I  think  that  the  word  may 
be  rejected  as  surplusage.  There  is  no  case  against  it,  and  it 
seems  to  me  to  be  a  construction  of  common  sense.  The  language 
of  the  information  contains  the  substantive  misdemeanor,  and 
there  is  no  language  that  would  contain  a  substantive  crime  in 
the  nature  of  felony  in  the  information.  The  conviction  must  be 
affirmed. 

Peing  J.  :  I  concur.  I  consider  a  substantive  offence  against  PringO 
the  49th  section  of  the  Offences  against  the  Persons  Act  is  shown 
in  the  information,  and  although  it  may  contain  the  words 
"  feloniously  did  make  an  assault  and  her  the  said  Martha 
Chesterfield  " — and  also  the  word  "  feloniously  "  in  the  next 
line — still,  these  words  being  left  out,  a  substantive  offence 
appears  in  the  information  sufficient  to  charge  an  offence  against 
the  49th  section.     The  conviction  must  therefore  be  affirmed. 

Conviction  affirmed  accordingly. 


134 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


1881. 
7th  Noiember. 

Harding  J. 


[In  Chambers.] 

In  re  MINNIS. 

[1  Q.L.J.  56 Note.— See  also  R.  v.  Kenniff,  1902  Q.W.N.  71,  post.] 

Gaol   Regulations — Bight   of  Legal   Adviser   to   interview  prisoner 
out  of  hearing  of  gaol  officials. 

Swanwick  (legal  practitioner)  applied  to  Mr.  Justice  Harding 
for  a  rule  calling  upon  the  Sheriff  of  Queensland  to  show  cause 
why  he  (Mr.  Justice  Harding)  should  not  order  the  keeper  of  Her 
Majesty's  Gaol  to  permit  Swanwick  to  interview  Michael  Minnis 
(then  in  gaol  on  a  charge  of  murder)  at  all  reasonable  hours  up 
to  the  day  of  his  trial  without  the  presence  of  the  said  gaoler 
or  other  officials.  Mr.  Justice  Harding  made  the  rule  absolute, 
granting  leave  to  Swanwick  to  interview  the  prisoner  at  all  reason- 
able hours,  the  gaoler  and  his  officials  to  be  at  liberty  to  see  the 
parties  during  such  interview  but  not  to  hear  them,  the  gaoler 
however  to  have  aU  the  powers  given  to  him  under  the  Gaol 
Regulations. 


1882. 
11th  July. 

Lillet/  G.J. 
Harding  J. 


[Full  Cottet.] 
DOWLING  V.  FRITZ  AND  OTHERS. 


[1  Q.L.J.  82.— Note. 


-29  Vic.,  No.  5,  s.  43,  is  repealed, 
of  Giiminal  Code.] 


See  now  ss.  390  and  46S 


Malicious  injuries  to_  property — 29   Vic,  No.   5,  s.  43. 
A  snake  does  not  come  within  the  meaning  of  the  iSrd  section  of  29  Vic,  No.  5. 

This  was  a  motion  to  make  absolute  a  rule  nisi,  granted  at  the 
instance  of  Patrick  DowUng,  of  Dalby,  for  a  writ  of  prohibition 
against  C.  R.  Haly,  P.M.,  of  that  place,  James  Skelton,  J.P., 
and  John  Fritz,  complainant  in  the  Court  below,  in  respect  of  a 
conviction  whereby  Dowling  was  fined  £10  for  "  maliciously 
wounding  a  Tasmanian  diamond  snake  "  belonging  to  Fritz. 

It  appeared  that  Fritz,  who  was  a  showman,  being  about  tO' 
open  a  show  on  the  Dalby  racecourse,  was  putting  his  para- 
phernalia over  the  fence,  when  some  dispute  occurred  between 
him  and  Dowling,  who  had  purchased  the  gate  privileges,  and 
the  latter  threw  a  box  containing  a  snake  over  the  fence,  injuring 
the  animal  so  much  that  it  was  expected  to  "  pine  away  and  die." 
Fritz  stated  that  he  had  paid  Mr.  Jessop  for  the  right  to  exhibit 


CRIMINAL  REPORTS,   1860-1907.  135 

his  show  on  the  course,  but  not  being  allowed  to  take  a  dray  Dowlinq  v  Fmtz 

inside  he  was  compelled  to  put  his  boxes  over  the  fence.     Dowling,  

however,  maintained  that,  as  purchaser  of  the  gate,  he  was 
justified  in  the  action  he  took,  and  said  he  did  not  throw  the 
snake  over,  but  put  it  quietly  through  the  fence.  The  informa- 
tion was  laid  under  the  43rd  section  of  the  Injuries  to  Property 
Act  (29  Vic,  No.  5),  which  provides  for  punishing  those  who 
"  shall  unlawfully  and  mahciously  kiU,  maim,  or  wound  any  dog, 
bird,  beast,  or  other  animal,  not  being  cattle,  but  being  either 
the  subject  of  a  larceny  at  common  law,  or  being  ordinarily  kept 
in  a  state  of  confinement,  or  for  any  domestic  purpose."  The 
rule  nisi  was  granted  on  the  grounds  : — 

(1)  That  a  snake  was  not  a  subject  of  larceny  at  common  law,  and  not  an  animal 
ordinarily  kept  in  confinement ;  and  (2)  that  the  injury,  if  any,  was  done  in  the 
exercise  of  a  bona  fide  right,  the  snake  being  at  the  time  a  trespasser. 

Griffith  Q.G.  moved  the  rule  absolute. 

Garrick  Q.G.  showed  cause,  and  cited  in  support  of  his  argument, 
Goke's  Reports,  487  ;  Rex  v.  Seering,  R.  ds  Ry.,  Gr.  Ga.  350  ; 
Wilkinson's  Queensland  Magistrate,  392  ;    Oke's  Synapsis. 

LiLLEY  C.J.  referred  to  an  article  in  the  Law  Journal,  April 
I5th,  p.  196,  in  which  two  EngUsh  decisions,  the  one  relating  to  a 
Hon,  and  the  other  to  a  mouse,  are  commented  upon. 

Garrick  Q.G.  was  stopped  by  the  Court,  who  said  the  matter 
would  be  decided  on  the  first  point. 
Griffith  Q.G.  was  not  called  upon. 

LiLLEY  C.J.  :  The  Court  has  no  doubt  about  the  matter  on  the  Lilley  C.J. 
first  point.  A  snake  was  not  covered  by  the  description 
"  ordinarily  kept  in  a  state  of  confinement."  The  description 
was  genuine,  and  referred  to  animals  which  were  allowed  to  go 
in  and  out  of  their  places  of  confinement — that  was,  animals 
that  were  confined  as  a  rule  but  not  always.  Snakes,  as  a  class, 
were  certainly  not  kept  in  confinement.  The  rule  would  therefore 
be  made  absolute  on  the  first  point. 

Power  argued  for  Fritz,  that  costs  should  not  be  granted 
against  him  as  the  ground  was  a  novel  one. 

The  Court  refused  the  application,  and  the  rule  was  made 
absolute  with  costs  against  Fritz. 

Solicitor  for  DowUng,  Thos.  Bunton. 
SoUcitors  for  Haly,  P.M.,  Foxton  &  Gardew. 
Sohcitor  for  Fritz,  A.  W.  Ghamhers. 


136  QUEENSLAND  JUSTICE  OP  THE  PEACE. 

[Full  Coubt.] 
VICKERS  V.  SELLHEIM  AND  OTHERS. 

[1  Q.L.J.  131.— Note.— 35  Vic,  No.  4,  s.  27,  is  repealed.    See  now  s.  447  of  Criminal 

Code.] 

^^^^-  Brands  Act,  (35   Vic,  No.  4),  s.  27. 
8th  May. 

The  fact  of  a  brand  being  found  put  over  the  registered  brand  of  the  owner 

Prina^J  °f  *  beast  does  not  raise  the  presumption  that  the  owner  of  the  former  brand 

— '- either  put  it  there  or  allowed  it  to  be  put  there. 

Motion  to  make  absolute  a  rule  nisi  for  a  prohibition  granted 
by  His  Honour  The  Acting  Chief  Justice  at  the  instance  of  George 
Vickers  against  PhiUip  Frederick  Sellheim  P.M.,  at  Charters 
Towers,  Joseph  Booth  Whitehead,  J.P.,  and  John  Inch,  both  of 
the  same  place.  A  calf,  the  property  of  Inch,  was  branded  by 
him  with  his  registered  brand,  and  lent  by  him  in  company 
with  his  mother  to  one  Cass,  a  dairyman.  While  in  Cass'  posses- 
sion, the  cow  and  calf  were  lost  sight  of  for  some  time,  and 
eventually  the  calf  was  found  near  Vickers'  house  with  his  registered 
brand  newly  put  over  that  of  Inch.  There  was  no  direct  evidence 
of  branding,  and  Vickers  did  not  appear.  The  bench,  consisting 
of  Sellheim  and  Whitehead,  convicted  Vickers  of  wilfully  permit- 
ting the  calf  to  be  branded  with  his  registered  brand,  and  fined 
him  £10,  and  £3  Is.  6d.  costs.  The  rule  was  granted  on  the 
ground  that  the  evidence  did  not  support  the  conviction. 

Griffith  Q.G.  (Gore  Jones  with  him),  moved  the  rule  absolute. 

Feez  showed  cause,  and  submitted  that  under  the  27th  section 
of  the  Brands  Act,  if  there  was  sufficient  evidence  to  support 
the  justices  finding  that  the  calf  was  permitted  to  be  branded  by 
Vickers,  the  Court  would  not  interfere  with  the  finding  that  he 
had  wilfully  permitted  the  same.  This  was  decided  by  the  late 
Chief  Justice,  Sir  James  Cockle,  in  Ex  parte  Kelly,  Wilkinson, 
page  9.  So  that  all  the  Court  would  have  to  find  was,  did  Vickers 
permit  the  calf  to  be  branded  with  his  registered  brand.  Of  this 
there  was  no  direct  evidence,  but  there  was  such  presumptive 
evidence  as  would  support  the  conviction.  The  fact  of  Inch's 
calf  branded  with  his  brand  being  found  near  Vickers'  house 
newly  branded  with  his  brand  over  Inch's  brand  raised  such  a 
reasonable  presumption  that  Vickers  permitted  it  to  be  branded 
that  it  was  for  him  (Vickers)  to  rebut  that  presumption,  and  this 
he  had  not  done.  If  the  Court  held  such  evidence  as  this  to  be 
insufficient  the  section  of  the  Act  might  as  well  be  cut  out  of  the 


CEIMINAL  REPOETS,  1860-1907. 


137 


Statutes,  for  it  was  almost  impassible  to  get  direct  evidence  of 
any  offence  under  the  section.  On  these  grounds  the  rule  should 
be    discharged. 

Griffith  Q.G.  contended  that  to  uphold  such  a  conviction  would 
be  to  subvert  all  the  principles  of  criminal  law  embodied  in  the 
maxim  "  Every  man  is  presumed  to  be  innocent  till  proved 
guilty."  There  was  absolutely  no  evidence  either  direct  or 
presumptive  of  Vickers  wilfully  permitting  the  calf  to  be  branded, 
and  the  rule  should  be  made  absolute  with  costs. 

Habding  A.C.J.  :  This  is  a  motion  by  Mr.  Griffith  to  make 
absolute  a  rule  nisi  granted  by  me  on  the  2nd  April,  1883,  for  a 
prohibition  against  the  magistrates  and  the  complainant  pro- 
ceeding on  a  conviction  or  order  made  1st  February,  1883,  whereby 
Vickers,  the  apphcant  for  the  prohibition,  was  found  guilty 
of  wilfuUy  permitting  to  be  branded  with  his  registered  brand  a 
certain  white  heifer.  The  offence  was  charged  under  s.  27  of 
the  Brands  Act  of  1872,  which  enacts,  "  If  any  person  shall 
wilfully  brand  any  stock  of  which  he  is  not  the  rightful  owner  or 
shall  wilfully  cause  direct  or  permit  any  stock  of  which  he  is  not 
the  owner  to  be  branded  with  his  brand  such  person  shall  on 
conviction  for  every  such  offence  in  a  summary  way  forfeit  and 
pay  any  sum  not  exceeding  fifty  pounds."  The  requirement  to 
bring  the  offender  within  that  section  is  that  he  shall  wilfuUy 
cause,  direct,  or  permit  any  stock  of  which  he  is  not  the  owner 
to  be  branded  with  his  brand.  First  of  all  you  must  have  stock 
branded  with  the  brand  of  a  person  not  the  owner  of  that  stock, 
then  you  must  show  that  that  brand  was  wilfully  permitted  to  be 
placed  on  the  stock  by  the  owner  of  the  brand.  The  meaning  of 
the  word  "  wifful "  is  now  understood  to  be  and  according  to  the 
most  recent  decisions  is  "  knowingly,  and  fraudulently."  There- 
fore a  brand  must  have  been  permitted  to  be  on  the  stock  know- 
ingly and  fraudulently  on  the  part  of  the  person  whose  brand  it  is, 
that  is,  that  he  must  have  permitted  the  brand  to  be  placed  on 
stock  of  which  he  was  not  the  owner  with  the  fraudulent  intent 
in  most  cases  to  acquire  the  ownership  in  the  stock.  It  was 
contended  by  Mr.  Feez,  that  the  mere  fact  of  the  brand  being  found 
on  the  stock  would  raise  a  presumption  that  the  person  whoSe 
brand  ft  was  had  branded  it  and  committed  an  offence.  I  can 
see  if  a  brand  is  found  upon  a  beast  and  it  is  proved  that  the 
owner  of  the  brand  put  it  there  the  law  will  presume  he 
put  it  there  knowingly  and  fraudulently,  but  the  mere  finding 
of    a    brand  upon    a   beast   without   proving   that    the    owner 


VlOKERS  V. 

Sellheim  and 
Others. 


Harding  A.C.J. 


138 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


ViOKERS  V. 

Sellbkim  and 
Others. 

Harding  A.C.J. 


Pring  J. 


of  the  brand  put  it  there  or  permitted  it  to  be  put  there 
does  not  connect  the  owner  of  the  brand  in  any  way  with  the 
branding.  Mr.  Feez's  presumption  would  go  to  this  extent : 
If  John  Smith  was  found  murdered  every  person  would  be  pre- 
sumed to  have  murdered  him  ;  but  the  proper  way  to  look  at 
such  reasoning  is  this  :  If  A.B.  had  killed  John  Smith  the  pre- 
sumption would  be  that  he  had  murdered  him  until  the  contrary 
was  shown.  Now  here  the  only  facts  in  the  case  are  that  the 
heifer  was  the  property  of  Inch,  the  respondent,  that  it  had  his 
brand  upon  it,  and  that  it  was  subsequently  found  with  Viekers' 
brand  upon  it,  and  shortly  afterwards  seen  in  the  neighbourhood 
of  Viekers'  residence,  and  further,  the  respondent  said  that 
Viekers  might  have  branded  it  in  mistake.  I  can  see  no  evidence 
to  connect  him  with  the  offence  charged.  Under  these  circum- 
stances I  think  the  evidence  does  not  support  the  conviction, 
and  that  this  rule  must  be  made  absolute  with  costs. 

Peing  J.  :  I  am  of  opinion  that  there  was  no  evidence  to 
support  the  conviction,  and  that  the  rule  must  be  made  absolute 
with  costs. 

Sohcitors  for  apphcant :  Daly  &  Hellicar,  agents  for  Marsland, 
Charters   Towers. 

Solicitor  for  respondent :    J.  S.  Salmond. 


1883. 
5th  June. 

Harding  A.G.J. 
Pring  J. 


[Full  Cottet.] 
REGINA  V.  EDWARD   CAMM. 

[1  Q.L.J.  136.— Note.— See  now  ss.  212  and  214  of  Criminal  Code.    See  R.  v.  Hinck- 
ley, 2  Q.L.J.  182,  post.] 

Upon  a  charge  of  having  carnally  known  and  abused  a  female  child  under  the 
age  of  ten  years,  scientific  evidence  or  the  evidence  of  experts  can  be  adduced 
and  is  receivable  as  some  evidence  of  the  age  of  the  child. 

Special  Case  stated  by  Mr.  Justice  Cooper. 

The  prisoner  Camm  was  tried  before  Mr.  Justice  Cooper  at 
Townsville,  upon  a  charge  of  criminally  assaulting  an  aboriginal 
girl  named  Rosie,  under  the  age  of  ten  years.  The  only  evidence 
of  the  girl's  age  was  given  by  two  doctors,  both  of  whom  swore 
positively  that  she  was  under  ten  years  of  age,  basing  their 
opinion  on  the  condition  of  her  teeth.  One  stated  that  she  was 
between  five  and  seven,  and  the  other  that  she  was  about  seven, 


CEIMINAL  REPOETS,  1860—1907. 


139 


while  it  was  afBrmed  that  the  teeth  showed  conclusively  that    „  BEGiNAti. 
T.     .                                               ,  1       rr,!  ■          .  T                           .                             Edward  Camm. 
Kosie  was  not  ten  years  old.     This  evidence  was  objected  to  by  

Mr.  MUford,  who  defended  the  prisoner,  but  admitted  by  the 
Judge  as  evidence  that  might  be  considered  by  the  jury.  In 
summing  up  he  told  them  that  the  age  of  the  child  was  an  in- 
gredient of  the  offence,  that  it  was  a  material  fact,  and  it  was 
the  duty  of  the  Crown  to  establish  that  fact  to  their  satisfaction 
beyond  a  reasonable  doubt :  that  the  only  evidence  on  the  point 
was  the  medical  testimony  and  the  presence  of  the  child  :  that 
the  medical  testimony  was  that  of  experts,  and  if  from  any 
circumstances,  whether  from  the  appearance  of  the  child  or 
otherwise,  they  had  any  doubt  about  it  they  were  at  Hberty  to 
reject  it  altogether,  in  which  case  the  prisoner  would  be  entitled 
to  an  acquittal.  The  jury  found  the  prisoner  guilty,  and  he  was 
sentenced  to  penal  servitude  for  Ufe.  The  question  for  the  Court 
was  : — Was  there  sufficient  evidence  of  Rosie's  age  to  be  left  to 
the  consideration  of  the  jury  ? 

The  Attorney-General  {Power  with  him),  appeared  for  the  Crown, 
and  supported  the  conviction  on  the  ground  that  the  sufficiency 
of  the  evidence  was  a  question  for  the  jury. 

The  following  cases  were  quoted  : — Regina  v.  Wedge,  5  C.  &  P. 
298  ;  Regina  v.  Nicholls,  10  Cox  C.  Cases,  476  ;  Garter  v.  Boehm, 
1  Smith's  L.C.,  572  ;   Regina  v.  Goode,  7  A.  &  E.,  536. 

The  prisoner  was  not  represented. 

Harding  A.C.J.  : — This  is  a  case  stated  for  the  opinion  of  this  Harding  A.C.J. 
Court  by  Mr.  Justice  Cooper.  The  facts  are  sufficiently  stated,  in 
the  case,  and  have  been  read  at  the  bar.  The  real  question  is 
whether  upon  a  charge  of  having  carnally  known, and  abused  a 
female  child  under  the  age  of  ten  years,  scientific  evidence  or  the 
evidence  of  experts  can  be  adduced  and  is  receivable  as  some 
evidence  of  the  age  of  the  child.  That  it  is  not  the  best  and  most 
perfect  evidence  is  seen  at  once,  and  where  the  best  and  most 
perfect  evidence  is  not  obtainable  as  in  this  case  I  have  no  doubt 
it  is  receivable,  the  value  or  weight  of  it  being  for  the  jury.  The 
law  as  stated  by  the  learned  Attorney-General,  from  Smith's 
Leading  Cases,  572,  namely  : — "  The  difference  is,  however, 
perhaps  less  upon  any  point  of  law  than  on  the  appHcation  of  a 
settled  law  to  certain  states  of  facts  ;  for,  on  the  one  hand,  it 
appears  to  be  admitted  that  the  opinion  of  witnesses  possessing 
peculiar  skill  is  admissible  whenever  the  subject  matter  of  inquiry 
is  such  that  inexperienced  persons  are  unUkely  to  prove  capable 


140 

Eegina  v. 
-Edward  Camm. 

Harding  A  C.  J. 


Pring  J. 


QUEENSLAND   JUSTICE   OF  THE   PEACE. 

of  forming  a  correct  judgment  upon  it  without  such  assistance, 
in  other  words,  when  it  so  far  partakes  of  the  nature  of  a  science 
as  to  require  a  course  of  previous  habit,  or  study,  in  order  to  the 
attainment  of  a  knowledge  of  it "  is  now  practically  adopted  in 
all  our  text  books.  Here  the  doctors  both  swore  that  they  were 
able  to  form  an  opinion  as  to  the  age  of  the  child,  and  one  of  them 
gave  certain  details  as  to  what  induced  him  to  form  that  opinion, 
and  it  was  for  the  other  side  to  cross-examine  the  witness  as  to 
his  special  knowledge  upon  the  subject.  It  also  apears  that  the 
child  was  in  court,  and  the  jury  could  weigh  the  evidence  and 
inspect  the  child  and  judge  for  themselves.  In  this  case  the  judge 
drew  the  attention  of  the  jury  to  the  nature  of  skilled  evidence, 
and  pointed  out  to  them  the  danger  of  such  evidence.  I  think 
the  evidence  was  admissible,  and  the  conviction  must  be  affirmed. 

Pbing  J.  :  I  think  the  evidence  was  admissible,  and  having 
been  left  to  the  jury  with  a  proper  direction  by  the  judge,  I  see 
no  reason  to  disturb  the  conviction. 


1884. 
Sth  February. 

Harding  A.G.J. 


[Roma  Circuit  Couet.J 

REGINA  V.   PARKER. 

[1  q.L.J.  194.] 

Delivery  of  Gaol. 

Paekee's  name  appeared  on  the  gaol  calendar  as  standing 
committed  for  trial  for  attempted  suicide.  Power,  prosecuting 
for  the  Attorney-General,  stated  that  his  name  was  on  the  calendar 
by  mistake,  that  he  had  been  committed  to  the  District  Court. 
His  Honour  directed  the  warrant  of  committal  to  be  produced. 
The  gaoler  produced  it,  stating  there  was  no  mistake,  the  warrant 
committed  the  prisoner  to  Roma  gaol  till  he  was  dehvered  in  due 
course  of  law.  It  was  endorsed  in  the  margin  in  different  ink  from 
the  body  "  for  trial  at  the  sittings  of  the  next  Southern  District 
Court  at  Roma,  1884.  James  Raeten,  A.C.P.S."  James  Raften, 
whose  name  appeared  in  the  body  of  the  warrant,  is  a  constable. 
There  was  no  other  warrant  against  him,  Mx.  Power  presented  no 
information,  and  His  Honour  discharged  the  prisoner. 


CRIMINAL   REPORTS,   1860-1907. 


141 


[Full  Couet.] 
REGINA  V.  BARTON. 

[1  Q.L.J,  supp.  16. — Note. — 29  Vic,  No.  11,  is  repealed.    See  now  chapter  III.  and 
s.  360  of  Criminal  Code.] 

Marriage — Time  of  celebration  of — Validity  of  marriage — Bigamy 
— Bigamous  marriage  beyond  jurisdiction  of  the  colony — 
29  Vict.,  No.  11—28  Vict.,  No.  15,  s.  11. 

The  11th  sect,  of  The  Marriage.  Act,  1864,  is  merely  directory,  and  therefore  a 
marriage  celebrated  before  8  o'clock  a.m.  or  after  8  o'clock  p.m.,  is  not  on  that 
account  void. 

The  statute,  9  Geo.  IV.,  cc.  31  &  83,  are  repealed  in  this  colony  by  29  Vic, 
No.  11,  and  the  repeal  is  not  limited  by  the  latter  or  any  other  statute  from  affecting 
the  jurisdiction  of  the  Supreme  Court.  Consequently,  the  Court  has  no  jurisdiction 
in  the  case  of  a  bigamy  or  other  offence  committed  outside  of  the  colony  and  its 
dependencies. 

Special  Case  Reserved. 

The  prisoner,  in  the  year  1874,  was  married  in  Queensland 
by  a  minister.  The  marriage  was  regular  in  every  respect  except- 
ing that  it  was  celebrated  after  the  hour  of  8  o'clock  p.m.  Some 
time  after  the  celebration  of  this  marriage  the  prisoner  went 
to  England  and  there  went  through  the  form  of  marriage  with 
another  woman,  the  first  wife  being  still  ahve,  and  then  returned 
to  Queensland.  The  question  reserved  for  the  consideration 
of  the  Court  was  whether  the  first  marriage,  having  been  celebrated 
after- the  hour  of  8  o'clock  p.m.,  was  vahd. 

Swanwick  appeared  for  the  prisoner. 

Lilley  C.J.  :  The  question  reserved  by  this  case  for  our 
decision  is,  whether  a  marriage  after  8  o'clock  in  the  evening  was 
valid  ?  If  it  was,  then  the  prisoner's  second  marriage  during  the 
life  of  his  first  wife  was  bigamous,  and  the  conviction  must  be 
affirmed.  If  the  first  marriage  was  not  valid,  then  the  second  was 
lawful,  and  the  conviction  must  be  set  aside.  Our  decision 
must  depend  upon  the  effect  to  be  given  to  the  proviso  to  the 
11th  section  of  The  Marriage  Act  of  1864,  which  is  as  follows  :— 
"  Provided  that  no  marriage  celebrated  by  any  minister  or  regis- 
trar shall  be  deemed  to  be  legal  or  vaUd  unless  celebrated  between 
the  hours  of  8  o'clock  in  the  morning  and  8  o'clock  in  the  evening." 
It  will  be  observed  that  the  prohibition  is  absolute.  It  depends  in 
no  way  on  the  will,  knowledge,  intention,  or  good  or  bad  faith  of 
the  parties  to  the  marriage.    It  is  fatal  to  the  innocent,  who  beUeve 


1879. 
8th  August. 

Lilley  C.J. 
Lutwyche  J, 
Harding  J. 


Lilley  C.J. 


142  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

Eeginaw.        themselves  to  be  marrying  within  the  prescribed  hours  equally 

'         with  the  wilful  or  designing  who  may  be  knowingly  marrying 

LiUey  C.J.        q^^  ^f  time.     All  the  clocks  in  the  village  may  indicate  the  hour 
to  be  seven,  but  if  it  can  be  shown  by  exact  scientific  observation 
that  it  was  in  fact  one  minute  past  eight,  the  marriage  wiE  be 
void.     At  any  time,  however  distant,  the  proof  of  this  circum- 
stance will  avoid  the  marriage.     Time  has  no  healing  influence 
upon  it.     The  evidence  of  some  local  philosopher  with  his  chron- 
nometer,  if  believed  by  a  jury,  will  suffice  to  invalidate  a  marriage 
solemnised  in  good  faith,  sever  the  long  estabUshed  and  publicly 
recognised  relation  of  man  and  wife,  reduce  a  seemingly  legitimate 
family  to   bastardy,   and  deprive  them   of  their  right  to  their 
ancestors'  property.     The  language  of  a  statute  must,  however, 
receive  the  interpretation  conveyed   by  its   ordinary  meaning, 
however  cruel  or  oppressive  may  be  the  consequences.     It  is 
binding  upon  us  to  give  effect  to  the  intention  of  the  Legislature, 
if  it  is  clear  and  unmistakeable.     If  the  whole  law  on  the  subject 
is  consistent,  and  pronounced  to  one  end,  it  must  take  its  course. 
Section  12  of  the  statute  which  follows  the  above  proviso,  is  as 
follows  : — "  Every  marriage  which  shall  be  celebrated  by  any 
minister  or  registrar  as  aforesaid,  after  oath  or  solemn  affirmation 
so  made,  shall  be  a  legal  and  valid  marriage  to  all  intents  and 
purposes,  and  no  other  marriage,  except  as  hereinafter  provided, 
shall  be  vaUd  for  any  purpose."     This  section  would  seem  to  be 
unnecessary  if  it  were  not  inserted  to  show  that  some  of  the 
preceding  requirements  are  essentials,  whilst  some  of  them  are  only 
directory.     If  this  section  was  intended   by  the  Legislature  to 
point  out  all  the  essentials  to  the  validity  of  the  marriage,  it  is 
inconsistent  with  the  absolute  terms  and  effect  of  the  proviso 
in  the  11th  section.     In  such  a  case  there  is  a  clear  rule  of  interpre- 
tation for  our  guidance,  the  later  provision  of  a  statute  gives  the 
law  and  prevails  over  an  inconsistent  preceding  one.     Section  12, 
when  it  speaks  of  a  marriage  "  celebrated  by  any  such  minister 
or  registrar  as  aforesaid  "  means  "  celebrated  by  some  minister  of 
religion  ordinarily  officiating  as  such  "  [s.  2],  or  "  celebrated  by 
such  registrar  as  aforesaid  " — that  is,  in  the  manner  prescribed 
by  s.  9.     The  mode  of  celebration  by  the  registrar  is  prescribed 
by  s.   9 — "  Where  the  parties  to  be   married  shall  before  the 
Registrar  for  Marriages  of  the  district  within  which  the  intended 
wife  ordinarily  resides  sign  a  declaration  in  the  form  set  forth 
in  the  schedule  to  this  Act,  marked  A,  the  marriage  may  be 
celebrated  between  such  parties  by  such  district  registrar  in  the 


CRIMINAL  REPORTS,  1860-1907.  148 

form  of  words  set  forth  in  the  schedule  hereto  marked  B,  to  be        Rboina  v. 
,    T          ,      .         ,    ,         ,                .                     ,               .                                     Barton. 
repeated  and  signed  by  the  parties  to  such  marriages  respec-  

tively."     The  words  in  schedule  B  once  pronounced  and  signed        LiUeyC.J. 

by  the  parties,  the  marriage  is  complete  and  valid — "  I 

of do  hereby  declare,  in  the  presence  of  A.B.,  Registrar  of 

Marriages  for  the  district  of  ,  that  I  take of to 

be  my  lawful  wife,  and  I  the  said do  declare  that  I  take  the 

said  to  be  my  lawful  husband."     It  is  then  "  celebrated  " 

after  oath  or  solemn  afl6Lrm.ation  so  made.  The  oath  is  required 
by  s.  10,  and  is  set  out  in  schedule  C.  It  seems  to  me  quite  clear 
that  the  words  as  aforesaid  in  s.  12  have  no  reference  to  the  hours 
of  celebration  in  the  preceding  proviso,  and  do  not  incorporate 
them  as  essentials  of  a  vaUd  marriage.  On  looking  to  the 
previous  Marriage  Act,  19  Vic,  No.  30,  ss.  2  to  6,  from  which  s.  12 
is  copied  without  alteration,  it  will  be  seen  that  the  words  as 
aforesaid  refer  to  the  mere  form  of  celebration  by  the  registrar. 
Neither  time  nor  place  is  mentioned  in  that  statute.  They  can 
have  no  reference  to  the  mode  or  form  of  celebration  by  the 
minister,  because  neither  statute  prescribes  any  mode  or  form 
of  celebration  by  him,  and  if  they  do  not  refer  to  the  form  or 
mode  of  celebration  by  him  in  the  present  Marriage  Act,  they  do 
not  incorporate  the  preceding  proviso  as  to  time.  We  should  thus 
have  this  result,  that  tim.e  is  essential  to  a  marriage  by  the  regis- 
trar, but  not  by  the  minister,  although  they  are  both  included 
in  the  proviso.  The  words  '  as  aforesaid '  must  thus  be  held 
to  be  capable  of  receiving  two  inconsistent  interpretations, 
which  is  absurd.  But  further,  if  the  words  as  aforesaid  refer  to 
s.  11,  they  include  the  whole  of  that  section,  so  that  a  marriage 
in  an  ofl&ce  not  pubUcly  used  by  the  registrar,  or  with  closed 
doors,  would  be  invalid,  inasmuch  as  s.  12  declares  that  "  no 
other  marriage  (except  as  thereinafter  provided)  shall  be  valid 
for  any  purpose."  It  is  not  unimportant  to  note  that  s.  12  is 
preceded  by  a  marginal  note,  "  essentials  for  valid  marriage." 
Of  the  aid  towards  the  interpretation  of  our  modern  Acts  from 
the  marginal  notes  to  the  statute,  I  may  quote  the  language  of  the 
present  Master  of  the  Rolls  :  "  7w  re  Venour's  Settled  Estates 
(L.R.  2  Ch.  Div.  525) ,  this  view  is  borne  out  by  the  marginal  note ; 
and  I  may  mention  that  the  marginal  notes  of  Acts  of  Parliament 
now  appear  on  the  Rolls  of  Parliament,  and,  consequently,  form 
part  of  the  Acts  ;  and,  in  fact,  are  so  clearly  so  that  I  have  known 
them  to  be  the  subject  of  motion  and  amendment  in  Parliament." 
It  is  certainly  valuable  where  it  confirms  an  independent  interpre- 


M4  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

Eegina  v.        tation.     The  effect  of  my  construction  of  s.  12  is  not  to  repeal  the 
proviso  to  s.  11,  but  to  reduce  it  to  a  direction  obligatory  upon 

LiUey  C.J.  ^^^  minister  or  registrar  not  to  celebrate  a  marriage  except  between 
the  hours  of  8  in  the  morning  and  8  in  the  evening,  but  the  marriage, 
if  celebrated  outside  those  hours,  is  still  valid  and  binding.  In 
other  words,  the  time  is  not  an  essential  of  a  valid  marriage. 
I  am  aware  that  we  are,  as  far  as  we  possibly  can,  to  interpret 
the  statute  so  as  to  preserve  the  actual  language  and  its  plain 
meaning,  and  to  harmonise  it  with  the  rest  of  the  words  of  the  Act. 
We  are  to  avoid  imputing  to  the  Legislature  either  ignorance  of  the 
effect  of  their  words  or  rashness  of  expression,  but  where  their 
last  words  are  clear,  and  produce  harmony  of  intention  and 
consistency  of  purpose  in  their  legislation,  they  most  prevail. 
We  must  look  at  the  whole  chapter  of  the  marriage  law,  both  to  the 
preceding  and  subsequent  statutes.  On  looking  at  s.  4  of  the 
latest  Act,  The  Justices  Marrying  Act  of  1872,  we  shall  find  it 
enacted  that,  "  It  shall  not  be  lawrful  for  any  justice  to  celebrate 
any  marriage  earUer  than  8  o'clock  in  the  morning,  or  later  than 
6  o'clock  in  the  afternoon."  The  justice  celebrating  a  marriage 
out  of  time  would  do  an  unlawful  act,  followed  by  certain  personal 
consequences,  but  the  marriage  would  be  vahd.  The  whole 
marriage  law  passed  in  review  at  that  time  [see  s.  5],  and  was 
incorporated  in  the  Act  of  1872,  so  far  as  it  applied.  Would  the 
Legislature  provide  that  a  marriage  out  of  time  before  a  justice 
should  be  valid,  and  leave  the  law  so  that  a  marriage  before  a 
registrar  or  minister  out  of  time  should  be  void  ?  It  seems  to 
me  that  the  Legislature  had  the  same  view  of  the  law  in  their 
minds  that  I  have  taken — that  is,  that  the  proviso  to  s.  11  of  the 
Act  of  1864,  read  with  the  whole  of  that  statute,  made  it  merely 
a  breach  of  the  law  by  the  registrar  or  minister  to  marry  persons 
out  of  the  fixed  hours,  but  did  not  invalidate  the  marriage.  It  is 
better  to  regard  the  proviso  of  1864  as  inaccurately,  or  even 
carelessly  expressed,  than  to  impute  something  like  folly  to  the 
framers  of  the  law.  If  the  proviso  avoids  the  marriage,  it  applies 
only  to  persons  marrying  before  a  minister  or  registrar,  and  Jews 
and  Quakers  may  marry  at  any  time.  Nay,  more,  a  marriage  by 
any  persons  before  a  person  not  lawfully  authorised  to  celebrate 
marriages,  if  but  one  of  the  parties  were  innocent,  and  beheves  him 
to  be  so,  will  be  valid  at  any  hour.  Clandestine  or  runaway 
matches,  or  the  marriages  of  minors  without  consent,  or  upon  a 
forged  consent,  are  not  invalid.  But  marriages  by  persons  of  full 
age,  free  from  any  legal  impediment,  and  uniting  themselves  in 


CEIMINAL  EEPORTS,  1860-1907.  145 


Beoina  v. 
Barton. 


perfect  good  faith,  with  the  sanction  of  every  one  interested  in 
securing  a  valid  marriage,  if  beyond  hours,  are  void.  Every 
other    provision    may    be    wilfully    violated,    and   the    marriage  *''       ' 

shall  be  good.  To  be  beyond  time  is  the  one  fatal  circumstance 
in  the  whole  law.  It  destroys  what  the  policy  of  the  law  favors 
and  seeks  to  promote  and  uphold — marriage.  Perjury,  forgery, 
a  sham  minister  or  registrar,  the  wilful  marriage  of  minors  without 
consent,  will  not  invalidate  the  marriage.  Offences  against 
the  Act  are  visited  with  penalties,  which  may  be  borne,  because 
they  are  nowhere  inflicted,  unless  the  law  be  "  knowingly  "  or 
"  wilfully  "  violated.  But  the  accidental  circumstance  of  marriage 
one  minute  out  of  time  may  bring  upon  innocent  persons  and  their 
offspring  the  loss  of  social  status,  rights,  and  property  accruing 
from  the  marriage  relation.  It  seems  to  me,  upon  fair  and  neces- 
sary rules  of  legal  interpretation,  I  can  say  that  the  Legislature 
had  no  such  intention.  The  first  marriage  was  vahd.  This 
interpretation  declares  the  like  law  to  exist  for  the  minister, 
registrar,  or  justice  celebrating  the  marriage,  and  the  one  rule  of 
vaUdity  for  the  marriage  bond.  The  case  was  properly  left  to 
the  jury,  and  the  conviction  on  the  point  raised  at  the  trial  would 
be  affirmed.  But  a  more  important — at  all  events,  a  seriously 
important — question  is  raised  upon  the  face  of  the  case  itself, 
and  that  is,  whether  our  Court  has  jurisdiction  to  try  this  offence. 
On  looking  at  the  statement  of  the  case  it  will  be  found  that  the 
second  marriage  was  celebrated  in  England  ;  the  prisoner  was 
married  in  England  by  a  minister  of  the  EstabUshed  Church. 
Now,  our  statute,  the  Act  relating  to  offences  against  the  person, 
declares  that  where  the  crime  of  bigamy  shall  have  been  committed, 
whether  the  second  marriage  be  in  Queensland  or  elsewhere,  it 
shall  be  felony.  It  is  a  very  clear  rule  of  law  that  a  legislature 
of  Umited  jurisdiction  can  speak  only  within  the  limits  of  its  own 
territory,  so  that  the  words  in  this  section  must  be  read  as  though 
standing  "  Queensland  or  its  dependencies,"  to  give  them  anything 
like  legal  force.  There  can  be  no  question  whatever  about  the 
matter,  because  all  colonies  can  deal  only  with  offences  committed 
within  their  own  territory,  except  where  the  Imperial  Parliament 
has  given  jurisdiction.  Previous  to  the  9  Geo.  IV.,  c.  83,  the 
Superior  Courts  at  Westminister  had  criminal  jurisdiction  in  the 
case  of  bigamy  wherever  the  second  marriage  might  have  taken 
place.  That  jurisdiction  was  given  by  the  9  Geo.  IV.,  c.  31. 
By  the  9  Geo.  IV.,  c.  83,  the  Courts  of  New  South  Wales  and  the 
other  colonies  had  given  to  them  the  same  criminal  jurisdiction 


146 


QUEENSLAND   JUSTICE   OP  THE    PEACE. 


Eegina  r. 
Barton. 

Lilley  C.J. 


Lutwyehe  J 


that  the  Court  of  Queen's  Bench  at  Westminster  had  at  the  time 
of  the  passing  of  that  statute.  The  effect  of  that  was,  in  my 
opinion,  to  give  to  the  Supreme  Court  of  New  South  Wales  and 
of  this  colony  jurisdiction  in  the  case  of  bigamy  wherever  the 
second  marriage  might  have  taken  place.  By  our  first  Supreme 
Court  Act,  passed,  I  think,  in  1863  or  1864,  the  9  Geo.  IV.,  c.  83, 
was  repealed,  but  it  was  enacted  that  nothing  therein  contained 
should  diminish  the  jurisdiction  of  the  Supreme  Court.  The 
jurisdiction  rested  upon  the  Imperial  Statute  creating  the  crime 
of  bigamy,  which  is  a  creature  of  statute  entirely.  But  in  1865 
the  local  Legislature  here  entered  upon  the  work  of  repeal  and 
amendment  and  consolidation.  By  seven  different  Acts  they 
undertook  to  consolidate  and  amend  the  criminal  law  of  the 
colony,  they  prepared  the  consolidation,  and  passed  the  various 
Acts,  one  of  them  being  the  Act  giving  jurisdiction  to  the  Court 
over  bigamy,  where  the  marriage  was  celebrated,  in  Queensland 
or  elsewhere.  When  they  had  done  that  they  repealed  the 
Imperial  Statute,  9  Geo.  IV.,  c.  31,  the  whole  of  it,  and  so  cut  away 
from  under  their  feet  the  Imperial  legislation  upon  which  the 
jurisdiction  of  the  Court  stood  in  respect  of  bigamy.  The  juris- 
diction of  the  Court  then  rested  solely  upon  the  local  Act  giving 
jurisdiction  to  the  Court  where  the  second  marriage  took  place, 
in  Queensland  or  elsewhere.  We  must  read  the  Acts  of  the 
Legislature  as  speaking  within  its  own  jurisdiction,  and  Queens- 
land or  elsewhere  can  only  be  read,  in  my  judgment,  as  Queensland 
or  its  dependencies.  This  marriage  took  place  in  England,  after 
the  passing  of  the  statute  to  which  I  have  referred  ;  it  was  an 
offence,  therefore,  not  against  our  law,  and  not  triable  here. 
I  am  of  opinion,  therefore,  the  conviction  must  be  quashed. 

LuTWYCHE  J.  :  Many  serious  evils — pointed  out  by  the  Chief 
Justice  in  his  judgment — would  result  from  the  Court  holding 
that  time  was  of  the  essence  of  the  contract  of  marriage.  While, 
on  the  other  hand,  no  practical  inconvenience  will  follow  from 
an  opposite  conclusion.  It  is  in  the  highest  degree  improbable 
that  any  minister,  registrar,  or  justice  of  the  peace  will  wilfully 
contravene  the  directory  provisions  of  the  statute  by  anticipating 
or  exceeding  the  period  of  time  within  which  the  Legislature 
has  declared  that  a  marriage  shall  be  solemnised,  and  thereby 
expose  himself  to  the  heavy  penalties  imposed  by  the  25th  section 
of  the  Marriage  Act  of  1864.  Oversights  may  indeed  occur,  but 
they  must  be  very  rare.  The  present  case  is  the  first  of  the  kind 
that  has  been  brought  under  the  notice  of  the  Court,  although 


CRIMINAL  REPORTS,  1860-1907. 


147 


the  Act  in  question  has  been  in  force  nearly  fifteen  years.  I 
should  be  loath,  however,  in  deciding  this  case,  to  found  my 
opinion  in  any  degree  upon  the  terms  of  the  marginal  note  attached 
to  the  12th  section  of  the  Act.  Whatever  may  be  the  case  in 
England,  the  marginal  notes  of  colonial  statutes,  especially  in 
the  earlier  days  of  legislation,  are  notoriously  unreHable.  I  will 
only  say,  in  answer  to  the  fii-st  question  submitted  to  the  Court, 
that  in  my  opinion  the  marriage  of  the  27th  October,  1874, 
was  not  an  illegal  marriage  within  the  proviso  of  the  11th  section 
of  the  Marriage  Act  of  1864,  but,  on  the  contrary,  was  legal  and 
valid  ;  but,  secondly,  I  think  the  case  ought  not  to  have  been 
left  to  the  jury,  and  that  the  conviction  cannot  be  sustained, 
on  the  ground  of  want  of  jurisdiction.  By  the  Criminal  Statutes 
Repeal  Act,  29  Vict.,  No.  14,  the  Imperial  Act,  9  Geo.  IV.,  c.  31, 
which  regulated  the  law  relating  to  bigamy,  was  repealed,  and  the 
provisions  of  a  Queensland  statute,  29  Vict.,  No.  11,  s.  58,  were 
substituted  for  it.  As  it  is  the  second  marriage  which  constitutes 
the  offence,  the  prisoner,  who  must  be  presumed  for  the  purposes 
of  this  part  of  the  case  to  be  a  subject  of  Her  Majesty,  might 
have  been  tried  in  England,  but  was  not  properly  tried  here. 
The  Imperial  Act,  24  and  25  Vict.,  c.  100,  s.  57,  of  which  the  58th 
section  of  our  colonial  Act  is  a  transcript,  would  have  been  appU- 
cable  if  the  second  marriage  had  been  celebrated  in  Queensland, 
and  the  trial  had  taken  place  in  England,  because  the  Imperial 
Parliament  has  power  to  pass  laws  which  are  binding  on  aU  Her 
Majesty's  subjects,  wherever  they  may  be  ;  but  the  laws  of 
Queensland  are  only  binding  within  the  Umits  of  the  colony  and 
its  dependencies. 

Harding  J.  :  I  agree  with  what  has  been  said  by  their  Honors. 
To  my  mind,  the  first  question  turns  upon  the  construction  of  the 
proviso  to  the  11th  section  of  the  Marriage  Act  of  1864 — "  Pro- 
vided that  no  marriage  celebrated  by  any  minister  or  registrar 
shall  be  deemed  to  be  legal  or  vahd  unless  celebrated  between 
the  hours  of  eight  o'clock  in  the  morning  and  eight  o'clock  in  the 
evening  " — whether  that  proviso  is  merely  declaratory  or  im- 
perative ;  reading  the  proviso  by  itself  it  would  seem  to  be  im- 
perative. But  to  ascertain  whether  it  is  or  not,  it  has  to  be 
considered  whether  or  not  it  is  cut  down  by  the  12th  section, 
which  enacts  that  "  Every  marriage  which  shall  be  celebrated  by 
any  such  minister  or  registrar  as  aforesaid  after  oath  or  solemn 
affirmation  so  made  shall  be  a  legal  and  vahd  marriage  to  all  intents 
and  purposes  and  no  other  marriage  except  as  hereinafter  pro- 


Eeqina  v. 
Bakton. 

Lutwyohe  J. 


Harding  J. 


148 


QUEENSLAND   JUSTICE   OF  THE    PEACE. 


Eegina  v. 
Bakton. 

Harding  J. 


vided  shall  be  valid  for  any  purpose."     Now,  what  is  referred  to 
by  the  words  '  as  aforesaid,'  do  they  refer  to  the    qualification, 
of  the  minister  or  registrar  alone  or  coupled  with  the  celebration  ? 
I  take  it  that  they  do  not  refer  to  the  qualification  of  the  minister 
or  registrar  alone,— the  word  '  such  '  before  the  words     '  minister 
or  registrar  '  would  have  been    sufficient    for    that    without  the 
words  '  as  aforesaid,'  consequently  it   refers    to    every    marriage 
which  shall  be  celebrated — that  is,  the  fact  of    celebration — in. 
short,   any  marriage  accomplished  or  through  which  the  form 
has  been  gone.     Returning  to  the  proviso,  it  has  no  effect  until 
the  marriage  is  celebrated,  in  fact,  it  recognises  under  what  has 
gone  before  that  a  marriage  may  be  celebrated  at  any    time 
legally,  and  then  it  purports  to  avoid  such  marriage  after  cele- 
bration if  celebrated  between  the  hours  mentioned.     The  cele- 
bration of  the  marriage,   which  must  be   complete  before   the 
proviso  takes  effect,  is  legahsed  by  s.   12 — this  is   exactly  the 
opposite  to  the  proviso — the  proviso   and  s.    12   are    therefore 
actually  repugnant,  and  the  proviso  as  an  imperative  enactment 
must  give  way  to  the  12th  section  and  consequently  be  construed 
as  being  directory  only  ;  it  certainly  does  not  avoid  the  marriage. 
I  answer  the  first  question  in  the  negative. 

Then  with  regard  to  the  second  question  and  the  point  which 
has  arisen  upon  the  case  itself.  The  second  marriage  appears 
to  have  been  celebrated  in  England,  outside  the  Hmits  of  the 
jurisdiction  of  this  colony.  Now  by  the  Charter  of  Justice  Act, 
9  Geo.  IV.,  c.  83,  s.  24,  the  laws  of  England  then  in  force  were 
given  to  the  colony  of  New  South  Wales.  During  the  session 
of  ParUament  in  which  that  Act  was  passed  there  had  also  been, 
passed  the  Act,  9  Geo.  IV.,  c.  31 — "  The  Injuries  to  Persons  Act." 
The  22nd  section  of  that  Act  relates  to  bigamy,  and  in  effect 
enacts  that  any  person  marrying  during  the  hfe  of  the  former 
husband  or  wife  shall  be  guilty  of  felony,  whether  the  second 
marriage  shall  have  taken  place  in  England  or  elsewhere.  That 
being  the  law  the  case  of  Reg.  v.  Packer  (3  N.8.W.  Reports  40) 
arose  in  New  South  Wales  before  Separation,  and  came  before  the 
Supreme  Court  of  that  colony  upon  a  special  case  stated  by  His 
Honor  Sir  Alfred  Stephen.  The  prjpcipal  facts  of  the  case  need 
not  be  mentioned  except  so  far  as  the  question  raised  by  the 
Chief  Justice  in  the  8th  par.  :  "  After  the  verdict  I  announced 
that  I  should  reserve  also  the  point  following  of  my  own  authority. 
The  statute  of  Geo.  IV.,  c.  31,  which  contains  the  enactment 
in  force  in  this  colony  on  the  subject  of  bigamy  was  appUed  to 


CRIMINAL  EEPORTS,  1860—1907. 


149 


New  South  Wales  and  Tasmania  by  the  Act  of  the  British  Parha- 
ment,  9  Geo.  IV.,  c.  83,  s.  24,  being  the  general  extending  section 
applicable  to  both  colonies.  But  it  occurs  to  me  as  deserving 
consideration,  whether  the  effect  of  the  statute,  9  Geo.  IV.,  c.  31, 
s.  22,  so  extended  to  New  South  Wales  as  aforesaid,  makes  the 
offence  of  marrying  in  Tasmania,  for  instance,  cognizable  and 
punishable  in  New  South  Wales.  I  submit  this  question  for  the 
opinion  of  the  Court,  together  mth  the  others  which  were  raised 
at  the  instance  of  the  prisoner's  counsel."  So  it  appears  that  at 
that  tim.e,  when  this  colony  formed  part  of  the  colony  of  New 
South  Wales,  the  doubt,  whether  under  the  Imperial  Statute  the 
Court  had  jurisdiction  was  exploded  by  the  decision  in  this  case, 
at  page  48.  The  Chief  Justice,  in  his  judgment,  says  : — "  The 
doubt  which  I  suggested  at  the  trial  has  been  removed  by  further 
considering  the  words  of  the  statute  creating  this  offence.  That 
statute  was,  by  the  9  Geo.  IV.,  c.  83,  incorporated  in  our  laws, 
and  is  therefore  the  law  of  the  colony.  If  the  enactment  has  been 
passed  by  a  colonial  legislature  it  would  have  no  force  as  to 
marriages  contracted  elsewhere  than  in  the  colony  legislating. 
But  the  British  ParUament  has  legislative  authority  over  aU  the 
colonies,  and  over  all  British  subjects  everywhere.  I  think, 
therefore,  that  the  courts  of  this  colony  have  jurisdiction  over  the 
offence,  although  committed  out  of  the  colony."  That  case  was 
subsequently  followed  by  Reg.  v.  Rogers,  9  N.S.W.  Reports,  34. 
Since  then  the  legislature  of  this  colony,  I  assume,  with  a  know- 
ledge of  the  law  and  the  effect  of  these  decisions,  has  by  subsequent 
enactments  done  something  which  has  had  the  effect  of  lessening 
or  diminishing  the  jurisdiction  of  this  Court,  as  I  hold  there 
can  be  no  doubt  as  to  the  meaning  of  the  legislature  when  it 
passed  The  Criminal  Statutes  Repeal  Act  of  1865.  Before  it 
had  passed  that  Act  it  had  passed  The  Offences  against  the  Person 
Act  of  1865,  the  58th  section  of  which  relates  to  bigamy.  That 
Act  in  that  section  merely  took  the  corresponding  section  of  the 
EngUsh  Act,  9  Geo.  IV.,  c.  31,  and  altered  the  word  "  England  " 
to  "  Queensland,"  and  otherwise  adapted  it  to  this  colony.  The 
Criminal  Statutes  Repeal  Act  of  1865  recites,  that  by  several  Acts 
of  the  then  present  session  of  Parliament  of  which  The  Offences 
against  the  Person  Act  formed  one,  divers  Acts  and  parts  of  Acts, 
amongst  which  9  Geo.  IV.,  c.  31,  was  included,  have  been  con- 
soUdated  and  amended,  and  that  it  is  expedient  to  repeal  the 
enactments  so  consolidated  and  amended,  and  proceeds  to  repeal 
amongst  others  the  Act  9  Geo.  IV.,  c.  31.     Consequently,  this 


Rbgina  II. 
Barton. 

Harding  J. 


150  QUEENSLAND   JUSTICE   OP  THE    PEACE. 

Ebgina  v.  22nd  section  of  9  Geo.  IV.,  c.  31,  was  swept  away,  and  being  swept 
t '  away  nothing  remained  but  the  enactment  passed  by  the  colonial 

Harding  J.  legislature — namely.  The  Offences  against  the  Person  Act  of  1865, 
which  has  no  force  in  respect  of  marriages  contracted  beyond 
the  colony.  Should  this  conviction  be  sustained,  another  difficulty 
strikes  my  mind.  A  prisoner  who  has  once  suffered  his  punish- 
ment is  entitled  to  plead  that  he  has  been  convicted  and  sufiered 
the  puishment,  and  is  not  liable  to  be  again  convicted  for  the  same 
offence.  Now  in  another  British  possession  some  distance  away 
from  here,  supposing  this  man  was  tried  again,  he  would  say 
that  he  had  been  already  tried  and  convicted,  and  had  suffered 
his  punishment  in  this  colony  under  the  ConsoUdated  Act.  The 
Court  trying  him  would  say  it  was  beyond  the  power  of  the 
Queensland  legislature  to  enact  an  Act  whereby  a  crime,  which 
is  local,  and  which  had  been  committed  outside  their  jurisdiction, 
is  made  amenable  to  the  laws  of  Queensland,  and  he  would  be 
convicted  and  punished  ;  and  so  he  might  be  tried  and  punished 
in  every  place  of  Her  Majesty's  dominions  where  there  is  a  separate 
jurisdiction.  The  strange  result  of  this  legislation  seems  to  be 
that  this  is  the  only  part  of  Her  Majesty's  dominions  where  this 
man  is  safe.  The  answer  I  give  to  the  second  question  is,  that 
this  Court  has  no  jurisdiction. 

Attorney  for  the  prisoner  :    N orris. 


[In  Chambers.] 
REGINA  V.  McMURDO  AND  DAVIES. 

[2  Q.L.J.  10.— Note.— See  also  R.  v.  Pierson,  Ex  parte  Small,  1906  S.R.Q.  5,  and 
McKelvey  v.  Meagher,  4  C.L.R.  265.] 

1884.  Fugitive  Offenders  Act  of  1881 — Foreign  Jurisdiction    Acts. 

Her  Majesty  has,  within  the  jurisdiction  of  the  High  Commissioner  for  the 

Lilley  C.J.         Pacific,  dominion  within  the  meaning  of  the  Fugitive  Offenders  Act  of  1881. 

Held,  that  in  this  case  the  prisoners  were  fugitives  from  that  part  of  Her  Majesty's 
dominions,  and  that  there  was  jurisdiction  to  arrest  them  within  this  colony  and 
to  return  them  to  the  High  Commissioner.  Held,  also,  that  the  warrant  under 
which  the  prisoners  were  arrested  and  its  endorsement  were  in  all  respects 
sufficient. 

This  was  a  return  to  a  writ  of  habeas  corpus.  The  facts  of  the 
case  appear  sufficiently  from  the  judgment. 

The  writ  was  obtained  on  the  following  grounds  : — (1.)  That 


CRIMINAL  REPORTS,   1860—1907. 


151 


the  warrant  under  which  the  prisoners  were  arrested  did  not 
disclose  any  offence  within  the  meaning  of  the  Fugitive  Offenders 
Act  of  1881.  (2).  That  it  did  not  appear  upon  the  face  of  the 
warrant  that  the  prisoners  were  fugitives,  within  the  meaning  of 
the  Act.  (3.)  That  the  endorsement  of  the  Governor  did  not 
disclose,  and  there  was  no  evidence  to  show,  that  the  Governor 
was  satisfied  that  the  warrant  was  issued  by  some  person  having 
authority  to  issue  the  same.  (4.)  That  the  warrant  was  not 
properly  authenticated  ;  and  (5)  that  the  warrant  was  not  issued 
by  a  person  having  authority  to  issue  it. 

Rutledge  A.O.  and  Chvbh  Q.C.  appeared  for  the  Crown  and 
for  the  High  Commissioner  of  the  Pacific.  Power  appeared  for 
the  prisoners. 

The  Attorney -General  contended  that  the  warrant  itself  disclosed 
an  offence  within  the  meaning  of  the  Fugitive  Offenders  Act  of 
1881,  namely  that  of  arson.  Section  9  provided  that  it  should 
"  apply  to  the  following  offences,  namely,  to  treason  and  piracy, 
and  to  every  offence,  whether  called  felony,  misdemeanour, 
crime,  or  by  any  other  name,  which  is  for  the  time  being  punish- 
able in  the  part  of  Her  Majesty's  dominions  in  which  it  is  com- 
mitted, either  on  indictment  or  information,  by  imprisonment 
with  hard  labour  for  a  term  of  twelve  months  or  more,  or  by  any 
greater  punishment."  That  in  the  place  where  the  offence 
was  committed  there  was  no  local  statute  which  declared  that 
arson  was  a  felony,  but  that  the  Order-in-Council  of  1877  provides 
for  the  estabUshment  of  the  High  Commissioner's  Court,  and  that 
s.  23  of  that  Order,  when  taken  in  conjunction  with  s.  27,  gives 
the  High  Commissioner's  Court  power  to  deal  with  offences 
committed  within  the  High  Commissioner's  jurisdiction,  and  to 
give  the  punishment  awarded  by  the  English  law  for  the  time 
being.  That  the  law  of  England  makes  arson  a  felony,  and 
punishable  by  more  than  twelve  months  imprisonment,  and 
therefore  it  is  an  offence  within  the  provisions  of  the  Act  of 
1881.  That  there  being  jurisdiction  on  the  part  of  the  High 
Commissioner's  Court  to  punish  offences  under  s.  9  of  the  Fugitive 
Offenders  Act  of  1881,  he  submitted  that  the  warrant  which 
had  been  issued  for  the  arrest  of  the  prisoners,  was  good 
and  unimpeachable,  that  the  warrant  was  precisely  such 
a  warrant  as  would  be  issued  in  England  for  the 
crime  of  arson,  and  that  on  the  first  ground  the  contention 
on  the  part  of  prisoners  was  untenable.  On  the  second 
ground,  he  contended  that  it  was  not  necessary  to  show  in  the 


Beqina  v. 

MoMttRDO  AND 

Davies. 


152  QUEENSLAND  JUSTICE   OF  THE   PEACE. 

Begina  r.        warrant  that  they  were  fugitives.     The  fact  that  the  warrant  is 
Davies.  to  ^^  backed  by  a  magistrate,  by  the  Governor  in  this  case, 

shows  that  the  person  whose  arrest  was  sought  was  a  fugitive 

from  the  place  where  the  offence  was  committed.  It  might 
be  contended  on  behalf  of  the  prisoners  that  they  were  not  "  found  " 
within  the  meaning  of  the  second  section  of  the  Act,  one  of  them 
having  been  brought  from  Adelaide.  He  submitted  that  a  man 
was  "  found  "  where  he  was  actually  present  at  the  time,  and  that 
although  in  the  present  case  one  of  the  prisoners  is  not  in  Queens- 
land voluntarily  he  is  nevertheless  under  s.  2  "  found  "  in  this 
colony.  Reg.  v.  Lopez,  27  L.J.,  M.C.,  48.  Whether  the  prisoners 
were  fugitives  within  the  meaning  of  the  statute  would  depend 
upon  the  question  whether  the  High  Commissioner  had  authority 
to  issue  a  warrant  for  the  apprehension  of  fugitives  from  the 
Westem|Pacific.  [|v;^|^ 

[i^I'Ae  Chief  Justice  :  It  is  enough  for  me  that  Her  Majesty 
has  established  civil  and  criminal  jurisdiction,  and  appointed 
officers  to  exercise  that  jurisdiction  over  all  the  islands  in  the 
Western  Pacific,  not  being  within  the  jurisdiction  of  any  civilised 
power.  I  have  no  doubt  the  High  Commissioner  has  power 
to  issue  the  warrant.  Then  the  question  arises  whether  s.  2 
appUes  to  the  return  of  prisoners  from  the  colony  of  Queensland 
to  the  jurisdiction  of  the  High  Commissioner.  I  have  no  doubt 
about  that,  if  the  procedure  is  right  and  the  warrant  and  all  its 
requisites  are  properly  set  out.     I  cannot  go  behind  the  warrant. 

The  Attorney-General  said  he  would  not  trouble  His  Honor 
further  upon  the  question  of  jurisdiction.  Then  as  to  the  third 
point,  he  submitted  that  there  was  nothing  in  the  Act  to  suggest 
how  the  Governor  was  to  endorse  upon  the  back  of  the  warrant 
that  he  was  satisfied.  The  mere  fact  of  his  signing  his  name 
was  proof  that  he  was  satisfied,  and  that  it  must  be  taken  that 
the  Governor,  in  endorsing  the  warrant,  had  acted  rightly.  That 
the  satisfaction  was  a  thing  in  the  Governor's  mind,  and  he 
communicated  the  effect  of  that  satisfaction  by  endorsing  the 
warrant  in  the  prescribed  manner.  As  to  the  fourth  point,  he 
contended  that  the  seal  of  the  Court  of  the  High  Commissioner 
showed  that  the  warrant  was  properly  authenticated.  The  fifth 
point,  he  submitted,  was  covered  by  the  ground  already  gone 
over. 

Chubb  Q.C.  contended  as  follows  :  1.  The  warrant  sufficiently 
discloses  a  criminal  offence  within  s.  9  of  the  Fugitive  Offenders  Act 
of  1881.     Technicality  in  charging  the  offence  was  not  required 


CEIMINA.L  REPORTS,  1860—1907.  153 

by  the  Act.     No  objection  could  be  taken  to  proceedings  for        Eeoina  v. 
want  ot  torm ;     Order-m-CounciI,   1877.     A  warrant  m  general  Daties. 

terms  is  sufficient.     Ex  parte  Terraz,  4  Ex.  D.,  63.     The  offence  

is  arson,  and  is  properly  stated.  2.  The  prisoners  are  fugitives. 
Foreign  Jurisdiction  Act,  1878,  ss.  3,  5.  Order-in-Council  1879, 
No.  15.  Fugitive  Offenders  Act,  1881,  ss.  2,  36.  3.  The  warrant 
is  properly  authenticated.  It  has  the  seal  of  the  High  Com- 
missioner's Court,  which  is  a  superior  court — Order-in-Council, 
1879,  No.  15.  It  is  therefore  a  judicial  proceeding  of  which  this 
Court  wiU  take  judicial  notice,  and  is  proved  by  the  seal.  Evidence 
and  Discovery  Act,  s.  39.  There  is  a  conclusive  presumption  in 
favour  of  the  regularity  of  judicial  proceedings  1  Taylor  on  Evidence, 
101.  The  warrant  requires  no  signature — Order-in-Council,  1877, 
No.  16,  135,  and  Form  5,  warrant  and  Order-in-Council,  1879, 
No.  6 — but  must  be  sealed.  4.  It  will  therefore  be  presumed 
to  have  been  issued  by  a  person  duly  authorised.  5.  The  endorse- 
ment by  the  Governor  is  evidence  of  satisfaction.  It  will  be 
presumed  that  he  has  acted  rightly — omnia  proesumuntur,  &c. 
Endorsement  is  in  his  discretion,  which  this  Court  will  not,  if  it 
could,  review.  It  is  a  question  of  the  quantum  of  evidence  suffici- 
ent to  satisfy,  of  which  the  Governor  is  the  judge.  Beg.  v. 
Maurer,  10  Q.B.D.,  513. 

Power  submitted  that  the  Crown  must  satisfy  his  Honor 
beyond  any  reasonable  doubt  that  the  persons  seeking  to  detain 
these  prisoners  had  authority  by  law  to  do  so,  that  it  was  quite 
clear  from  the  statutes  and  Orders-in-Council  that  a  great  differ- 
ence existed  between  Her  Majesty's  jurisdiction  in  Her  own 
dominions  and  in  islands  not  under  civilised  power.  He  cited  the 
preamble  to  the  Fugitive  Offenders  Act,  and  s.  2,  and  contended 
that  the  words  "  an  offence  committed  in  one  part  of  Her 
Majesty's  dominions,"  and  to  the  offenders  "  leaving  that  part 
and  being  found  in  another,"  meant  part  of  Her  Majesty's  domin- 
ions as  distinct  from  the  Western  Pacific  Islands,  over  which  she 
exercises  power  and  jurisdiction.  By  s.  6,  the  fugitive  is  to 
be  returned  to  that  part  of  Her  Majesty's  dominions  from  which 
he  is  a  fugitive,  but  he  took  it  that  it  was  not  intended  in  this 
case  to  return  these  men  to  the  Laughlan  Islands,  which  are 
not  within  Her  Majesty's  dominion,  but  to  take  them  to  the 
capital  of  Fiji.  -  Section  8  provides  that  after  he  is  taken  back  he 
must  remain  in  the  place  for  six  months.  Section  9  declares  that 
the  offence  must  have  been  originally  committed  within  Her 
Majesty's  dominion.     That  no  Order-in-Council  had  been  made 


154  QUEENSLAND  JUSTICE   OP  THE   PEACE. 

Eegina  v.        under  s.  36,  and  that  there  must  be  a  special  Order-in-Council 
Davies,  made  after  the  Act  was  passed.     That  the  warrant  ought  to  have 

set  out  that  the  offence  was  one  punishable  with  twelve  months 

imprisonment  or  more.  That  the  authentication  of  the  warrant 
must  be  proved.  That  the  endorsement  must  shew  that  the 
Governor  is  satisfied  that  the  warrant  was  issued  by  some  person 
having  authority  in  manner  provided  by  s.  26  of  the  Act.  He 
referred  to  Nash's  case,  4  5.  cfc  Aid.  295,  and  Deybel's  case,  ibid., 
243,  to  show  that  it  was  necessary  to  state  what  proof  was  given. 

Chubb  Q.C.,  in  reply  :  "  Dominions,"  in  the  2nd  section  of  the 
Fugitive  Offenders  Act  of  1881,  not  only  means  the  territorial 
dominions  of  Her  Majesty  but  the  parts  and  places  not  within 
the  dominions  where  she  exercises  power  and  jurisdiction.  The 
Fugitive  Offenders  Act  of  1843,  ss.  1,  2.  It  is  settled  usage  that, 
as  a  general  rule,  persons  belonging  to  a  state  cornmunity,  when 
in  places  not  within  the  territorial  jurisdiction  of  any  power, 
are  in  the  same  legal  -position  as  if  on  the  soil  of  their  own  state. 
Hall  on  International  Law,  207.  The  Foreign  Jurisdiction  Act 
of  1878,  s.  3,  empowers  the  Queen-in-Council,  by  order,  to  extend 
the  Act  of  1843  and  other  Acts  mentioned  in  the  schedule,  or  any 
Acts  in  force  for  the  time  being,  amending  or  substituted  for 
the  same  to  any  country  or  place  to  which  for  the  time  being 
the  Act  of  1843  applies,  whereupon  such  country  or  place  assumes 
the  character  of  a  colony,  with  Her  Majesty-in-Council  as  its 
legislature  ;  and  the  5th  section  of  the  same  Act  extends  the  Act 
of  1843  over  Her  Majesty's  subjects  resident  in  or  resorting  to 
countries  or  places  not  under  regular  Governments.  The  Court 
and  jurisdiction  of  the  High  Commissioner  was  established  by 
Order-in-Council  in  1877.  A  further  Order-in-Council  in  1879 
extended  the  Act  of  1843,  or  so  much  of  it  as  was  in  force,  or  any 
Act  amending  the  same  or  in  substitution  for  it,  to  the  Western 
Pacific  Islands.  Then  came  the  Act  of  1881,  in  substitution 
for  the  Act  of  1843,  which  it  repealed.  The  Acts  of  1843  and 
1878,  with  the  Order-in-Council  of  1877,  were  sufficient  in  them- 
selves to  constitute  the  Laughlan  Islands  "  dominions  "  within 
the  meaning  of  the  Act  of  1881,  but  if  not,  the  Order-in-Council 
of  1879  apphed  the  Act  of  1878  as  an  amending  statute,  and 
prospectively  the  Act  of  1881  as  an  Act  in  substitution  for  that  of 
1843,  and  Her  Majesty  has  thereby  power  aitd  jurisdiction, 
which  is  "  dominion,"  in  those  islands. 

His  Honor  reserved  his  decision  and  on  June  4th  delivered  the 
following  judgment  : — 


CRIMINAL  REPORTS,   1860-1907. 


155 


Lilley  C.J. 


LiLLEY  C.J.  :    The  prisoners  have  been  brought  up  on  a  writ     ,,^5*'"*  "■ 

.  '^  1         MOMUBDO    ANI> 

oi  habeas  corpus,  and  upon  that  an  application  has  been  founded  Davies. 

for  their  discharge.  They  were  arrested  by  virtue  of  the  followinsj 
warrant  : — ■ 

To  John  Fowley,  police  officer,  and  other  officers  of  this  Court. 

William  M'Murdo  and  Joseph  Griffith  Davies,  British  subjects,  have  this  day- 
been  charged  before  this  Court  for  that  they  did,  on  or  about  the  8th  April,  in  the 
year  of  our  Lord  1883,  at  Laughlan  Islands,  such  islands  being  islands  in  the 
Western  Pacific  Ocean,  not  being  within  the  limits  of  any  British  colony,  and 
not  being  within  the  jurisdiction  of  any  civilised  power,  feloniously,  unlawfully, 
and  maliciously  set  fire  to  certain  dwelling  houses  the  property  of  one  Tamiu  and 
others,  with  intent  thereby  then  to  injure  the  said  Tamiu  and  others,  against 
the  form  of  the  statute  in  such  case  made  and  provided,  and  against  the  peace  of 
Our  Lady  the  Queen,  Her  Crown  and  dignity. 

Therefore  you  are  hereby  commanded  in  the  name  of  Her  Majesty  Queen 
Victoria,  forthwith  to  apprehend  the  said  William  M'Murdo,  and  to  bring  him 
before  this  Court  to  answer  to  the  said  charge,  and  to  be  further  dealt  with  accord- 
ing to  law. 

Then,  that  warrant  bears  the  seal  of  the  Court  of  the  High  Com- 
missioner for  the  Western  Pacific.  This  warrant  was  issued  by 
the  Court  of  the  High  Commissioner  of  the  Western  Pacific, 
and  is  to  be  enforced,  if  at  aU,  by  virtue  of  the  Fugitive  Offenders 
Act  of  1881.     By  s.  2  of  that  Act  it  is  enacted — 

Where  a  person  accused  of  having  committed  an  offence  (to  which  this  part 
of  this  Act  applies)  in  one  part  of  Her  Majesty's  dominions  has  left  that  part,  such 
person  (in  this  Act  referred  to  as  a  fugitive  from  that  part)  if  found  in  another 
part  of  Her  Majesty's  dominions,  shall  be  liable  to  be  apprehended  and  returned 
in  manner  provided  by  this  Act  to  the  part  from  which  he  is  a  fugitive. 

A  fugitive  may  be  so  apprehended  under  an  endorsed  warrant  or  a  provisional 
warrant. 

The  warrant  bears  the  Governor's  endorsement,  under  s.  3,  which 
endorsement  is  as  follows  : — 

To  all  constables  of  police  for  the  colony  of  Queensland. 

These  are  to  authorise  you  to  execute  the  within  warrant  within  the  said  colony, 
by  apprehending  the  within-named  William  M'Murdo,  and  bringing  him  before 
William  Henry  Day,  Esq.,  acting  police-magistrate  at  Brisbane,  or  some  other 
police-magistrate  of  the  said  colony,  to  be  dealt  with  according  to  law. 

Given  under  my  hand,  at  Government  House,  this  15th    day  of  May,  1884. 

A.  MusOKAVE  Governor. 

S.   W.   Griffith. 

The  warrant  in  the  case  of  Davies  is  in  exactly  similar  words. 
Both  are  in  Uke  form,  arid  bear  the  Hke  endorsement.  By  s.  3 
it  is  enacted  that  the  Governor  of  a  British  possession,  "  if  satis- 


156 


QUEENSLAND  JUSTICE   OP  THE    PEACE. 


Eegina  u. 
MoMuBBO  iND 

Davies. 
Lilley  C.J. 


fied  that  the  warrant  was  issued  by  some  person  having  lawful 
authority  to  issue  the  same,  may  endorse  such  warrant  in  manner 
provided  by  this  Act,  and  the  warrant  so  endorsed  shall  be  a 
sufficient  authority  to  apprehend  the  fugitive  in  the  part  of  Her 
Majesty's  dominions  in  which  it  is  endorsed,  and  bring  him  before 
a  magistrate."  On  the  prisoners'  behalf  it  has  been  contended 
that  it  does  not  appear  that  they  are  fugitives  within  the  meaning 
of  that  statute,  on  the  ground  that  they  have  not  left  any  part 
of  Her  Majesty's  dominions,  and  that  the  offence  was  not  com- 
mitted within  any  part  of  Her  Majesty's  dominions  within  the 
meaning  of  the  statute.  Upon  this  the  question  of  jurisdiction 
has  been  raised  ;  whether  the  power  and  jurisdiction  of  Her 
Majesty  within  the  Western  Pacific  Islands  exercised  by  the 
High  Commissioner  is  included  within  the  word  "  dominion " 
in  the  Fugitive  Offenders  Act,  and  whether  the  prisoners  can  be 
treated  as  fugitives  from  any  part  of  Her  Majesty's  dominions  ? 
The  solution  of  this  question  depends  upon  the  nature  of  Her 
Majesty's  power  or  jurisdiction  within  the  Western  Pacific 
Islands.  I  shall  consider  the  question  entirely  in  connection 
with  the  Foreign  Jurisdiction  Acts,  the  Western  Pacific  Orders-ia- 
Council,  and  the  Fugitive  Offenders  Act  of  1881.  The  Foreign 
Jurisdiction  Act  of  1843  is  described  as  "  an  Act  to  remove  doubts 
as  to  the  exercise  of  power  and  jurisdiction  by  Her  Majesty 
within  divers  countries  and  places  out  of  Her  Majesty's  dominions, 
and  to  render  the  same  more  effectual."     After  reciting — 

That  byftreaty,f capitulation,  grant,  usage,  sufferance,  and  other  lawful  means, 
Her  Majesty  hathfpower  and  jurisdiction  within  divers  countries  and  rlacesTout 
of  Her  Majesty's  dominions :  And  that  doubts  have  arisen  how  far  the  exercise 
of  such  power  and  jurisdiction  is  controlled  by  and  dependent  on  the  laws  and 
customs  of  this  realm,  and  it  is  expedient  that  such  doubts  should  be  removed — 

by  s.  1  it  is  enacted — 

That  it  is  and  shall  be  lawful  for  Her  Majesty  to  hold,  exercise,  and  enjoy  any 
power  and  jurisdiction  which  Her  Majesty  now  hath,  or  may  at  any  time  hereafter 
have,  withinfanyfcountry  or  place  out  of  Her  Majesty's  dominions,  in  the  same 
and  as  ample  a  manner  as  if  Her  Majesty  had  acquired  such  power  or  jurisdiction 
by  the  cession  or  conquest  of  territory. 

By  s.  2  it  is  enacted — 

That  every  act,  matter,  and  thing  which  may  at  any  time  be  done,  in  pursuance 
of  any  such  power  or  jurisdiction  of  Her  Majesty,  in  any  country  or  ijlace  out  of 
Her  Majesty's  dominions,  shall,  in  all  courts  ecclesiastical  and  temporal  and 
•elsewhere  within  Her  Majesty's  dominions,  be  and  be  deemed  and  adjudged  to  be, 
in  all  cases  and  to  all  intents  and  purposes  whatsoever,  as  valid  and  effectual  as 


CEIMINAL  REPORTS,   1860—1907. 


15T 


though  the  same  had  been  done  according  to  the  local  laws  then  in^oroe  within 
such  country  or  place. 

On  the  13th  August,  1877,  by  Order-in-Council,  Her  Majesty 
estabUshed  civil  and  criminal  jurisdiction  within  the  islands 
of  the  Western  Pacific,  in  pursuance  of  the  Pacific  Islanders 
Protection  Acts  of  1872  and  1875  and  the  Foreign  Jurisdiction 
Acts  from  1843  to  1875,  and  by  virtue  of  any  other  powers  in 
Her  Majesty  vested.  By  Article  5  of  that  Order-in-Council, 
the  jurisdiction  extends  and  applies  to  certain  named  islands, 
and  to  "  all  other  islands  in  the  Western  Pacific  Ocean  not  being 
within  the  Umits  of  the  colonies  of  Fiji,  Queensland,  or  New  South 
Wales,  and  not  being  within  the  jurisdiction  of  any  civilized  power, 
and  to  the  waters  within  three  miles  of  every  island  or  place 
aforesaid."  By  Article  6,  subdivision  1,  the  order  also  applies 
to  "  all  British  subjects,  for  the  time  being,  within  the  Western 
Pacific  Islands,  whether  resident  there  or  not."  By  Article  22 
it  is  provided  that — 

Subject  to  the  other  provisions  of  this  order.  Her  Majesty's  criminal  and  civil 
jurisdiction  exercisable  in  the  Western  Pacific  Islands  shall,  as  far  as  circumstances 
admit,  be  exercised  on  the  principles  of  and  in  conformity  with  the  statute  and 
other  law  for  the  time  being  in  force  in  and  for  England,  and  with  the  powers 
vested  in  and  according  to  the  course  of  procedure  and  practice  observed  by  and 
before  the  courts  of  justice  and  justices  of  the  peace  in  England,  according  to  their 
respective  jurisdiction  and  authorities. 

Then  by  s.  3  of  the  Foreign  Jurisdiction  Act  of  1878  it  is  enacted 
that — 

(1.)  It  shall  be  lawful  for  Her  Majesty  the  Queen-in-Council,  if  it  seems  fit, 
from  time  to  time,  by  order,  to  direct  that  all  or  any  of  the  enactments  described 
in  the  first  schedule  to  this  Act,  or  any  enactments  for  the  time  being  in  force 
amending  or  substituted  for  the  same,  shall  extend  with  or  without  any  exceptions, 
adaptations,  or  modifications  in  the  order  mentioned  to  any  country  or  place  to 
which  for  the  time  being  the  Foreign  Jurisdiction  Ad,  1843  applies. 

(2.)  Thereupon  those  enactments  shall  operate  as  if  that  country  or  place  were 
one  of  Her  Majesty's  colonies,  and  as  if  Her  Majesty-in-Council  were  the  Legis- 
lature of  that  colony. 

It  has  been  contended  that  this  section  enables  Her  Majesty 
to  make  an  Order-in-Council  of  a  prospective  character  (as  it  is 
called)  giving  effect  not  only  to  statutes  in  existence  at  the  time 
of  promulgating  the  Order-in-Council,  but  to  statutes  that  may 
be  thereafter  passed.  I  am  unable  to  construe  the  statute  in  that 
way,  and  if  the  Fugitive  Offenders  Act  of  1881  depends  upon  the 
'prospective  force   of  the   Order-in-Council  of   1879   (which    was 


Eeoina  v. 

MoMdrdo  and- 

Davibs. 

Lilley  C.J. 


158  QUEENSLAND  JUSTICE   OF   THE   PEACE, 

Eegina  0.        passed  by  virtue  of  this  3rd  section),  upon  subsequent  legislation 

McMCBDO   AND         '^  "^  .,  j-i-i,  r 

Davies.  I  am  of  opinion  that  it  has  no  force  within  the  colony  of  Queens- 

-. ...  '  J  land  in  respect  of  proceedings  commenced  within  the  Western 
Pacific  jurisdiction  ;  in  other  words,  that  the  statute  does  not 
authorise  the  appUcation  of  prospective  legislation  by  Order-in- 
Council.  However,  I  think  that  in  this  case  the  jurisdiction 
under  the  Fugitive  Offenders  Act  of  1881  does  not  need  the  support 
of  the  Order-in-Council  of  1879.  If  it  did,  I  should  hold  that  that 
support  would  fail,  inasmuch  as  the  language  of  the  statute  of 
1878,  and  even  the  words  of  Article  15  of  the  Order-in-Council 
of  1879,  do  not  appear  to  me  to  bear  a  construction  giving  effect 
to  a  statute  to  be  thereafter  passed  unless  a  special  Order-in- 
Council  should  be  issued  after  the  passing  of  the  substituted 
statute.  No  Order-in-Council  has  been  issued  under  s.  36  of  the 
Fugitive  Offenders  Act  of  1881  applying  it  to  this  jurisdiction 
of  the  High  Commissioner.  With  regard  to  the  Fugitive  Offenders 
Act  of  1881, 1  rest  my  decision  on  such  parts  of  it  as  do  not  require 
the  support  of  any  Order-in-Council.  It  seems  to  me,  neverthe- 
less, that  irrespective  of  this  omission  to  issue  an  Order-in-Council 
under  s.  36,  and  irrespective  of  the  Order-in-Council  of  1879,  the 
Fugitive  Offenders  Act  of  1881,  or  at  least  all  such  parts  of  it  as  do 
not  need  for  their  operation  the  support  of  the  alleged  prospective 
authority  of  the  Order-in-Council  of  1879,  but  rest  simply  upon 
the  force  of  the  statute  of  1881  itself,  are  in  operation  within 
the  Western  Pacific  Islands  and  within  this  colony.  By  s.  5 
of  the  Foreign  Jurisdiction  Act  of  1878  it  is  enacted  that — 

In  any  country  or  place  out  of  Her  Majesty's  dominions,  in  or  to  which  any  of 
Her  Majesty's  subjects  are  for  the  time  being  resident  or  resorting,  and  which  is 
not  subject  to  any  Government  from  whom  Her  Majesty  might  obtain  power  and 
jurisidiction  by  treaty  or  any  of  the  other  means  mentioned  in  The  Foreign  Juris- 
diction Act,  1843,  Her  Majesty  shall,  by  virtue  of  this  Act,  have  power  and  juris- 
diction over  Her  Majesty's  subjects  for  the  time  being  resident  in  or  resorting  to 
that  country  or  place,  and  the  same  shall  be  deemed  power  and  jurisdiction  had 
by  Her  Majesty  therein  within  The  Foreign  Jurisdiction  Act,  1843. 

Now,  in  my  opinion,  by  the  force  of  ss.  1  and  2  of  the  Foreign 
Jurisdiction  Act  of  1843,  and  of  the  Order-in-Council  of  1877, 
and  of  ss.  3  and  5  of  the  Foreign  Jurisdiction  Act  of  1878,  Her 
Majesty  has  within  the  jurisdiction  of  the  High  Commissioner  for 
the  Pacific  dominion  within  the  meaning  of  the  Fugitive  Offenders 
Act  of  1881,  and  that  the  prisoners  are  fugitives  from  that  part 
of  Her  Majesty's  dominions,  and  that  there  is  jurisdiction  to 
arrest  them  within  the  colony  of  Queensland,  and  to  return  them 


CRIMINAL  REPORTS,   1860-1907. 


159 


to  the  jurisdiction  of  the  High  Commissioner  upon  the  endorsed 
warrant,  if  the  instrument  itself  and  its  endorsement  are  in  other 
respects  sufficient.  By  force  of  the  Foreign  Jurisdiction  Acts,  and 
of  the  Orders-in-Counoil,  there  is  as  much  of  the  "territorial" 
element  in  this  "  dominion,"  "  power,"  or  "  jurisdiction "  as 
is  essential  to  uphold  and  exercise  it.  Upon  the  question  of  the 
sufficiency  of  the  warrant,  it  was  first  contended  that  it  does  not 
disclose  an  offence  within  the  meaning  of  the  Fugitive  Offenders 
Act  of  1881,  s.  9,  inasmuch  as  it  does  not  appear  on  the 
face  of  that  warrant  that  the  offence  is  punishable  by  im- 
prisonment with  hard  labour  for  a  term  of  twelve  months 
or  more,  or  by  any  greater  punishment.  The  warrant  aptly 
describes  in  appropriate  and  technical  words  the  offence  of 
arson  as  it  would  be  described  in  a  similar  instrument  for 
the  arrest  of  an  accused  person  in  England  or  this  colony. 
Now  by  Article  27  of  the  Order-in-Council  of  1877,  the  Court  of 
the  High  Commissioner  by  the  Judicial  Commissioner  has  power 
to  adjudge  any  such  punishment  as  any  court  of  criminal  juris- 
diction in  England  has.  for  the  time  being  power  to  adjudge,  and  the 
Court  by  the  High  Commissioner  or  a  Deputy-Commissioner 
has  a  Umited  power  of  punishment  for  any  term  not  exceeding 
twelve  months,  with  or  without  hard  labour.  The  Fugitive 
Offen^rs  Act,  s.  9,  uses  the  words  "  That  the  Act  shall  apply 
to  offences  punishable  in  the  part  of  Her  Majesty's  dominions 
in  which  it  was  committed  by  imprisonment  with  hard  labour 
for  a  term  of  twelve  months  or  more  or  any  greater  punishment." 
The  warrant  and  the  Order-in-Council,  of  which  I  am  bound 
to  take  judicial  notice,  therefore  show  that  the  offence  is  one 
clearly  within  the  terms  of  s.  9  of  the  Fugitive  Offenders  Act, 
and  on  this  point  the  warrant  must  be  held  to  be  sufficient. 
In  the  English  case  of  A.B.,  cited  from  the  despatch  of  the  29th 
June,  1883,  the  colonial  law  required  to  be  proved,  and  the 
distinction  is  that,  in  this  case,  it  is  judicially  noticed.  The 
second  point,  on  the  sufficiency  of  the  warrant,  is  that  it  is  not 
properly  authenticated.  Section  29  of  the  Fugitive  Offenders  Act 
of  1881  declares  that  warrants  shall  be  deemed  duly  authenticated 
for  the  purposes  of  the  Act  if  they  are  "authenticated  in  the 
manner  provided  for  the  time  being  by  law."  By  Article  32 
of  the  Order-in-Council  of  1879,  judicial  notice  is,  as  I  have  said, 
to  be  taken  of  that  Order  and  of  the  principal  Order  of  1877, 
and  of  all  seals  used  thereunder,  and,  on  reference  to  the  schedule 
to  the  Order  of  1877,  I  find  that  a  warrant  in  the  first  instance 


Beoina  v. 

MoMUEDO  AND 

Davies. 
Lilley  C.J. 


160 


QUEENSLAND  JUSTICE   OF  THE  PEACE. 


EEoraA  V. 

McMuBDO  AND 

Davies. 
Lilley  C  J. 


for  the  apprehension  of  an  accused  is  to  be  issued  by  the  Court 
and  to  bear  the  seal.  I  must  take  judicial  notice  of  the  seal 
(Article  32,  Order  of  1879)  and  presume  that  it  was  appended, 
and  the  warrant  issued  by  a  person  having  lawful  authority 
to  issue  the  same,  and  this  determines  the  third  and  fourth  point, 
which  latter  was  that  the  warrant  was  not  issued  by  a  person  having 
authority  to  issue  the  same.  The  fifth  point  raised  was  that  the 
endorsement  does  not  show  that  the  Governor  was  satisfied  that 
the  warrant  was  issued  by  some  person  having  lawful  authority 
to  issue  the  same.  This  point  is  in  some  degree  analogous  to  the 
contention  that  where  a  statute  authorises  a  justice  of  the  peace 
to  endorse  a  warrant  upon  ;^roof  on  oath  of  the  handwriting 
of  the  justice  granting  the  warrant,  the  endorsement  itseK 
should  aver  that  such  proof  had  been  given.  The  contention  here 
being  that  the  Governor  should  have  averred  that  he  was  satisfied 
as  required  by  the  Act.  It  has  not  been  decided  in  England  that 
such  averment  is  necessary,  although  no  doubt  if  made  it  would 
give  a  more  assured  warrant.  This  point  was  raised  in  England 
in  the  case  of  Atkins  v.  Kilby,  11  A.  and  E.  Ill,  before  Baron 
Parke.  Without  deciding  it  the  learned  Baron  said  "  he  thought 
that  he  must  presume  the  magistrate  to  have  acted  rightly,  and 
on  the  requisite  proof."  I  think  I  must  do  so  here,  and  presume 
that  the  Governor  discharged  his  duty  as  required  by  the  statute, 
and  that  he  was  satisfied  that  the  warrant  had  been  duly  issued 
before  he  placed  his  endorsement  upon  it.  The  case  for  the 
prisoners  fails  on  aU  points,  and  I  remand  them  to  custody  under 
the  endorsed  warrant. 

The  prisoners  were  remanded  to  custody  accordingly. 

Solicitors  for  prisoners  :    Hart,  Mein,  &  Flower. 
Solicitor  for  Crown  :    Grown  Solicitor. 


1884. 
October. 


[Full  Cottet.] 
CURRAN  V.  DOWZER  AND  OTHERS. 

[2  Q.L.J.  45.— Note.— 35  Vic,  No.  4,  s.  28  is  repealed.    See  now  s.  448  of  Criminal 

Code.] 

Brands  Act  (35   Vict.  No.  4,  s.  28). 

The  word  '"  wilfully  "  in  the  28th  section  of  The  Brands  Act  means  knowingly 
and  intentionally. 

This  was  a  motion  to  make  absolute  a  rule  nisi  for  a  prohibition 
granted  by   His   Honour  Mr.  Justice  Harding,   at  the  instance 


CRIMINAL   REPORTS,    1860-1907. 


161 


of   John   Curran   against   James   Dowzer,    Jonathan   Job,   and 

Frederick  Edward  Bull,  JJ.P.,  and  George  William    Roebuck, 

Inspector  of  Brands  for  the  Wide  Bay  District.     Six  head  of 

female  cattle,  the  property  of  Curran,  were  found  by  the  Inspector 

of  Brands  bearing  a  brand  which  had  been  altered,  a  portion 

of   one    brand   having    been   imprinted    over   the  corresponding 

portion  of   a  previously  imprinted  brand.     The   original  brand 

was  the  registered  brand  of  Curran,  and  the  brand  as  altered 

represented  a  brand  registered  by  Curran  in  the  name  of  his  son. 

There  was  evidence  that  the  brand  had  been  altered  by  Curran, 

but  no  improper  motive  was  alleged.     The  bench,  consisting  of 

Dowzer,    Job,    and    BuU,    convicted   Curran   of   having   wilfully 

permitted  his  registered  brand  upon  six  head  of  female  cattle 

to  be  altered  by  the  impressing  of  the  registered  brand  of  his  son 

upon  the  top  of  his  brand,  and  fined  him  5s.  per  head  of  stock  so 

branded,  and  £1  5s.  8d.  costs.    • 

Drake  moved  the  rule  absolute,  and  the  Attorney-General  and 
Real  appeared  to  show  cause  on  behalf  of  Roebuck. 

The  Attorney-General  submitted  that  in  order  to  sustain  a 
conviction  under  the  28th  section  of  the  Brands  Act  it  was  only 
necessary  to  show  that  the  brands  had  been  altered  by  Curran  ; 
it  was  not  necessary  to  show  that  the  brands  had  been  blotched 
or  defaced.  There  was  evidence  that  Curran  had  imprinted 
the  second  brand  and  the  fact  that  only  a  portion  of  the  second 
brand  had  been  used  was  evidence  of  an  intention  to  alter  the 
original  brand.  The  fact  that  no  particular  reason  for  the 
alteration  had  been  alleged  was  no  answer  to  the  charge. 

Vickers  v.  Sellheim  and  Others  {Q.L.J.  Vol.  I.,  p.  131)  and 
Gully  V.  Smith  (12  Q.B.D.  p.  121)  were  cited  and  commented  on. 

Real  contended  that  the  imprinting  of  the  second  brand  upon 
the  first  being  a  breach  of  the  statute,  it  was  not  necessary  to  show 
any  motive  for  making  the  alteration.  It  would  not  be  difficult, 
if  necessary,  to  suppose  a  reason  for  the  alteration.  For  instance, 
under  the  operation  of  the  Insolvency  Act  a  question  of  ownership 
might  be  raised  and  in  that  case  the  state  of  the  brand  would 
become  of  importance. 

Drake  submitted  that  the  word  "  wilfuUy "  imported  some- 
thing more  than  mere  consciousness  of  performing  an  act  ;  some 
wrong  motive  must  be  shown.  One  brand  could  not  be  placed 
over  another  without  making  an  alteration,  and  therefore,  if  the 
act  of  knowingly  placing  one  brand  over  another  were  an  offence 

L 


CUBK\N    V. 

DOWZEK  AND 

OXHEBS. 


162 


QUEENSLAND   JUSTICE   OF  THE    PEACE. 


CUBBAN  V. 

DOWZER  AND 

OlBEBB. 


LiUey  C.J. 


under  the  28th  section,  the  word  "  wilfully  "  might  be  struck  out 
of  the  statute.  No  improper  motive  had  been  alleged,  and  there 
was  sufficient  evidence  to  rebut  any  presumption  of  fraud.  By 
the  29th  section  of  the  Act,  cattle  bearing  brands  so  altered 
are  liable  to  be  impounded  as  unbranded  stock  ;  it  was  therefore 
against  the  interest  of  Curran  to  alter  the  brands  on  his  own  stock. 
The  act  of  placing  one  brand  over  another  is  an  offence  under 
the  18th  section  of  the  Act  as  being  a  non-compliance  with  the 
rules  contained  therein,  and  Curran  should  have  been  convicted, 
if  at  all,  of  an  offence  under  that  section. 

LiLLEY  C.J.  :  We  think  that  the  rule  must  be  discharged, 
and  I  think  with  costs.  The  meaning  of  the  28th  section  is,  to 
my  mind,  perfectly  clear.  If  a  person  wilfully  alters  a  brand  or 
wilfully  permits  a  brand  to  be  altered,  he  incurs  the  penalty 
provided  by  the  statute  for  such  misconduct.  The  word  ''wil- 
fiilly"  in  this  section  seems  to  me  to  mean  knowingly  and  inten- 
tionally. If  a  man  knowingly  alters  a  brand,  intending  that  there 
should  be  an  alteration  of  it,  then  he  has  done  that  act  wilfuUy  and 
cannot  plead  as  an  excuse  for  such  conduct  that  he  did  not  know 
his  act  was  prohibited  by  statute.  The  magistrates  before  whom 
the  case  was  brought  had  reasonable  evidence  from  which  they 
could  find  that  there  was  a  wilful  permission  of  alteration  of  a 
brand  within  the  meaning  of  the  statute.  It  is  such  a  question 
as  would  be  submitted  to  a  jury  ;  and  there  being  evidence  from 
which  reasonable  men  would  come  to  the  conclusion  that  there 
had  been  a  wilful  alteration  of  the  brand,  they  were  justified 
in  coming  to  that  conclusion.  The  judgment  must  be  upheld. 
The  rule,  therefore,  will  be  discharged  with  costs. 

Solicitors  for  applicant :    Wilson  ds  Wilson. 
Solicitor  for  Roebuck  :    Crown  Solicitor. 


1884. 
October. 


[Full  Court.] 
REGINA  V.  HOPKINS  AND  EATON. 
[2  Q.L.J.  47.— Note.— 40  Vic,  No.  10,  ss.  1  and  2  are  repealed.    See  now  s.  2  of 
Oaths  Act  Amendment  Act  of  1884  (48  Vic,  No.  19).] 

Oaths  Act  Amendment  Act  of  1876  (40  Vic,  No.  10),  Declaration. 

Under  the  Oaths  Act  Amendment  Act  of  1876  it  is  for  the  Judge  to  be  satisfied 
at  the  trial  that  the  witness  understands  the  nature  of  the  declaration  substantially. 

This  was  a  special  case  stated  by  Mr.  Deputy-Judge  Mansfield. 
The  facts,  as  stated,  so  far  as  they  are  material,  were  as  follows  : — 


CRIMINAL  REPORTS,   1860—1907. 


163 


The  prisoners  were  tried  at  the  Northern  District  Court, 
Charters  Towers,  on  July  iOth,  1884,  on  a  charge  of  horse-steahng. 
Charhe,  an  aboriginal,  was  tendered  as  a  witness  for  the  Crown. 
No  interpreter  was  present,  or  available.  Charlie  knew  enough 
EngUsh  to  understand  and  speak  easy  words.  The  presiding 
Judge  was  satisfied  that  an  oath  would  have  no  binding  efiect 
on  Char  he's  conscience.  It  was  impossible  to  make  Charlie 
understand  the  actual  words  of. the  declaration  set  out  in  s.  1 
of  the  Oaths  Act  Amendment  Act  of  1876.  In  answer  to  the  Judge, 
CharHe  said  he  had  come  to  tell  the  truth,  and  no  he,  and  that  he 
knew  that  if  he  did  not  tell  the  truth  he  would  be  sent  to  prison. 
The  Judge  was  quite  satisfied  that  CharUe  understood  that  he 
bound  himself  to  ,tell  the  truth,  and  that  he  was  aware  of  the 
penalties  he  would  incur  if  he  did  not  do  so.  The  Judge  being 
then  about  to  admit  Charlie's  evidence,  GampbeU,  prisoners'  coun- 
sel, objected  to  its  admission  on  the  ground  that  CharUe  had 
not  taken  a  promise  and  declaration  in  the  form  stated  in  s.  1 
of  the  Oaths  Act  Amendment  Act  of  1876,  or  to  the  Uke  effect, 
mutatis  mutandis,  as  required  by  s.  1  of  the  said  Act.  The  Judge 
admitted  Charlie's  evidence.     Both  prisoners  were  convicted. 

The  questions  for  the  opinion  of  the  Court  were  :  1.  Was 
the  Judge  right  in  admitting  CharUe's  evidence  ?  2.  Were  the 
prisoners  properly  convicted  ? 

Power  (Campbell  with  him)  appeared  for  the  prisoners.  Feez 
appeared  for  the  Crown,  in  support  of  the  conviction. 

Power  contended  that  the  witness  CharHe  could  only  speak 
easy  words,  and  that  no  attempt  was  made  to  repeat  the  declara- 
tion to  him,  or  to  get  it  into  his  head.  That  it  would  be  a  fair 
interpretation  of  the  case  if  CharUe  could  be  prosecuted  for  perjury  ; 
and  that  the  Judge  appeared  to  have  acted  upon  the  principle 
that  he  would  take  the  evidence  for  what  it  was  worth.  Regina 
V.  Tommy  and  George,  Queensland  Law  Reports,  vol.  1,  part  2, 
■p.  14,  was  cited. 

Campbell  foUowed. 

Feez  was  not  called  upon. 

LiLLEY  C.J.  :  In  this  case  it  appears  that  the  presiding  Judge 
was  satisfied  of  the  first  matter  he  had  to  determine— namely, 
that  an  oath  would  have  no  binding  effect  on  the  conscience  of 
the  witness,  and  further  that  it  was  impossible  to  make  CharUe 
understand  the  actual  effect  of  the  words  of  the  declaration  in  s.  1 
of  the  Oaths  Act  Amendment  Act  of  1876.     But,  in  answer  to 


Regina  v. 

Hopkins  and 

Eaton. 


Lillej  C.J. 


164 


QUEENSLAND  JUSTICE   OF  THE   PEACE. 


Eegina  v. 

Hopkins  and 

Eaton. 

Lilley  C.J. 


Harding  J. 


the  Judge,  Charlie  said  he  had  come  to  tell  the  truth,  and  no  he. 
That  appears  to  me,  to  be  in  substance  the  ordinary  witness'  oath, 
that  he  had  come  to  speak  the  truth,  the  whole  truth,  and  nothing 
but  the  truth.  But  this  declaration  has  added  to  the  difficulties  of 
witnesses  who  do  not  understand  the  effect  of  an  oath,  by  requiring 
that  they  should  know  that  they  render  themselves  hable  to  the 
penalties  of  wilful  and  corrupt  perjury.  In  this  case,  I  think, 
substantially  that,  in  popular  language,  the  witness  said  that  he 
did,  because  he  said  that  if  he  did  not  tell  the  truth  he  would  be 
sent  to  prison.  But  the  Judge  has  certified  something  more  in  this 
case.  It  is  for  the  Judge,  under  this  statute,  to  be  satisfied  at 
the  trial  that  the  witness  understands  the  nature  of  the  declaration 
substantially,  the  fair  interpretation  of  the  language  ;  and  the 
nature  of  the  duty  the  Judge  has  to  discharge  has  been  determined 
in  the  case  of  Begina  r.  Tommy  and  George,  decided  in  this  Court, 
that  the  Judge  has  to  determine  as  to  the  competency  of  the 
witness.  If  there  is  an  omission  of  duty  on  the  part  of  the  Judge, 
the  matter  may  be  brought  before  this  Court  on  a  case  reserved 
and  stated  by  the  Judge  himself  ;  but  where  the  Judge  dis- 
charges his  duty,  he  alone  is  to  decide  as  to  the  competency 
of  the  witness  within  the  meaning  of  the  Act.  The  Judge  has 
certified  to  us,  and  there  is  no  reason  to  doubt  that  he  was  quite 
satisfied  of  the  state  of  CharHe's  mind  at  the  time,  and  that 
Charlie  understood  and  was  aware  of  the  penalties  he  would  incur 
if  he  did  not  tell  the  truth.  Under  these  circumstances,  I  think 
the  Judge  discharged  his  duty,  the  witness  appeared  to  be  com- 
petent, the  requirements  of  the  statute  were  satisfied,  and  the 
conviction  must  be  affirmed. 

Harding  J.  :  The  solemn  declaration  required  to  be  adminis- 
tered by  the  Oaths  Act  Amendment  Act  of  1876  is  one  of  considerable 
difficulty,  and  certainly,  although  the  Act  requires  the  witness  to 
solemnly  promise,  its  administration  is  one  of  the  most  unsolemn 
proceedings  that  the  dignity  of  the  court  has  to  submit  to. 
Generally,  having  an  ignorant  black  witness  talking  a  species  of 
pigeon  English,  every  word  he  says  producing  a  disturbance  in 
the  court.  To  my  mind  the  proceeding  is  very  unsatisfactory, 
but  being  the  law  of  the  land,  that  law  has  to  be  administered. 
In  the  administration  of  that  law,  as  in  other  matters  of  detail,  or, 
so  to  speak,  of  administration,  great  latitude  rests  in  the  hands  of 
each  Judge.  Some  Judge's  minds  are  more  technical  than  others  ; 
other  Judges  take  larger  and  more  general  views,  but  by  the 
joining  of  such  different  minds  together  probably  the  true  aim  of 


CRIMINAL  REPORTS,   1860-1907. 


165 


the  Act  is  obtained  in  the  end.  Bearing  this  in  mind,  and  the 
latitude  allowed  to  each  Judge,  the  question  to  be  decided  is. 
Has  the  law  been  satisfied  in  that  particular  case  ?  In  this  case, 
as  I  take  it,  there  are,  as  Mr.  Campbell  mentioned,  three  detailed 
steps  required.  First,  that  the  presiding  Judge  is  to  be  satisfied 
that  the  taking  of  an  oath  will  have  no  binding  effect  on  the 
conscience  of  the  proposed  instrument  of  evidence.  In  this  case 
it  is  definitely  stated  that  the  presiding  Judge  was  satisfied  that 
an  oath  would  have  no  binding  effect  on  Charlie's  conscience. 
So  that  is  the  first  step  satisfied.  The  next  step  is  that  the  pro- 
posed instrument  of  evidence^  or  witness,  is  to  make  a  promise  or 
declaration  in  the  form  given  in  the  Act,  or  to  a  like  effect,  mutatis 
mutandis.  I  will  read  the  words  of  the  late  Mr.  Justice  Lutwyche 
in  the  case  of  Regina  v.  Tommy  and  George,  Q.L.R.,  vol  1,  part  2, 
p.  18.  "  I  think  they  were.  The  words,  '  to  the  like  effect, 
mutatis  mutandis,'  in  the  first  clause,  clearly  show  that  it  is  not 
necessary  that  there  should  be  a  literal  declaration  by  the  witness 
in  the  form  given  by  the  Act."  Not  necessary  to  be  a  Uteral 
declaration.  With  that  I  agree.  Here  one  of  the  difficulties 
would  greet  a  Judge  of  technical  mind.  Such  a  Judge  would  go 
through  the  actual  form  simply  as  a  form  ;  but  going  through 
that  would  be  of  no  use  at  aU,  if  the  requirements  of  the  statute 
were  not  satisfied.  Now,  if  it  is  to  be  a  Uteral  declaration,  find 
out  first  of  all  what  a  hteral  declaration  is.  A  solemn  promise  to 
speak  the  truth  ;  that  is  what  it  amounts  to.  Secondly,  that  the 
proposed  witness  makes  the  solemn  promise  or  declaration  with 
the  fuU  knowledge  that,  if  he  does  not  speak  the  truth,  I  will 
render  myself  Hable  to  the  penalties  of  wilful  and  corrupt  perjury. 
That  is  a  technical  declaration.  What  is  the  Uteral  ?  I  am  not 
going  to  tell  what  is  false  ;  I  am  going  to  tell  what  is  true,  and  I 
am  perfectly  aware  if  I  tell  what  is  false  and  do  not  tell  what  is 
true  I  shall  be  punished.  That  is  the  Uteral.  In  this  case  the 
Judge  says  it  was  impossible  to  make  CharUe  understand  the 
words  in  the  declaration  ;  that  is  to  say,  it  was  impossible  to 
make  him  understand  them  -as  technicaUy  placed.  The  Judge 
goes  on — "  in  answer  to  the  Judge,  CharUe  said  he  had  come  to 
ten  the  truth,  and  no  Ue,  and  knew  that  if  he  did  not  teU  the  truth 
he  would  be  sent  to  prison."  That  is  the  Uteral.  That  actually 
occurred.  There  you  have  the  two  steps — first,  the  satisfaction 
of  the  Judge  that  an  oath  would  have  no  binding  effect  on  the 
witness  ;  second,  an  actual  compUance  with  the  requirements  of 
the  law— a  literal  compUance.  Then  the  third  requisition  of 
the  law  is  that  it  shaU  be  the  duty  of  the  presiding  Judge,  before 


Begina  v. 

Hopkins  and 

Eaton. 

Harding  J. 


166 


QUEENSLAND  JUSTICE   OF  THE   PEACE. 


Begina  v. 

Hopkins  and 

Eaton. 

Harding  J. 


taking  the  evidence  of  any  such  person,  to  satisfy  himseK  that  he 
clearly  understands  the  meaning  of  such  promise  and  declaration. 
Did  the  Judge  do  that  in  this  case  ?  In  his  statement  of  the  case 
he  says  that  he  was  quite  satisfied  that  CharUe  bound  himself  to 
tell  the  truth,  and  was  aware  of  the  penalties  he  would  incur  if 
he  did  not  do  so.  There  are  the  three  requirements  ;  each  of 
them  to  my  mind  was  satisfied  in  this  case,  and,  that  being  so,  I 
think  the  law  has  been  complied  with,  and  that  the  conviction 
must    be    affirmed. 

Solicitor  for  Crown  :    Crown  Solicitor. 
SoUcitors  for  prisoners  :    Macpherson  ds  Mishin. 


1885. 
March. 


[Full  Court.] 
WILLIAMS  V.  BAIRD  AND  OTHERS. 

[  2  Q.L.J.  60.— Note.— 35  Vie.,  No.  4,  s.  27  is  repealed.    See  now  s.  447  of  Criminal 
Code.    As  to  bona  fide  claim  of  right,  see  now  s.  22  of  Criminal  Code.] 

TU  Brands  Act  of  1872  (35  Vict.  No.  4)  sec.  27. 

A  hona  fde  claim  of  right  of  property  is  a  good  defence  to  a  charge  of  illegally 
branding  under  s.  27  of  the  Brands  Act  of  1872. 

This  was  a  motion  to  make  absolute  a  rule  nisi  for  a  prohibition 
granted  by  Mr.  Justice  Harding,  at  the  instance  of  John  WilUams, 
against  James  Clark  Baird,  Edmund  Bellord  Power,  John  Davis, 
and  John  Clunn,  of  Cooktown,  JJ.P.,  and  Dominick  Brannighan, 
of  Hidden  Valley,  near  Cooktown,  selector.  Brannighan  claimed 
to  have  lost  a  bull  calf  with  its  mother  in  a  scrub  whilst  driving 
them  with  a  mob  of  cattle,  on  January  27,  1884.  The  calf  was 
then  unbranded  ;  and  he  did  not  see  it  or  the  mother  until  the 
middle  of  the  following  December,  when  he  saw  both  in  a  mob  of 
Williams'  cattle,  and  the  calf  had  Williams'  brand  upon  it,  and 
was  earmarked.  He  took  both  to  his  yard,  where  WiUiams  saw 
them,  but  did  not  see  the  calf  suckling  Brannighan's  cow,  as  it 
was  alleged  by  the  latter  to  have  done.  Brannighan,  in  evidence, 
swore  that  his  calf  was  eight  or  nine  months  old  ;  on  the  other 
hand,  an  employee  of  Williams,  named  Culver,  swore  that  the 
calf  was  the  offspring  of  one  of  WiUiams'  cows,  and  was  twelve 
months  old  at  least.  The  opinion  of  the  Inspector  of  Brands, 
also,  was  that  it  was  at  least  twelve  months'  old.  Brannighan 
could  not  say  whether  the  calf  was  not  branded  on  the  29th  June, 


CRIMINAL   REPORTS,   1860—1907.  167 

1884,  though  it  had  the  appearance  of  having  been  branded  about  „  Williams  v. 

imi                1                               ,-1                                 1                       Baird  AND  Others 
beptember.     The  bench,  consisting  of  the  above-named  justices,  

convicted  Williams  of  illegally  branding  the  calf  with  his  registered 

brand,  not  being  its  lawful  owner,  and  fined  him  £10,  in  default  a 

month's  imprisonment. 

The  rule  was  granted  on  the  grounds — 

1.  That  there  was  no  evidence  that  the  offence  was  com- 

mitted within  six  months  before  information  laid. 

2.  That  there  was  no  evidence  that  the  branding  was  done  or 

permitted  wilfully. 

3.  That   the   conviction   was   against   the   evidence.     Court 

dismissed  first  ground  ;   Brands  Act  Amendment  Act  of 
1884  apphes  in  this  case. 

Eeal  moved  the  rule  absolute.  He  stated  the  facts.  The  calf 
was  seen  only  once  by  prosecutor  before  it  was  branded  ;  and  a 
cow  of  defendant's  had  mothered  it  throughout.  He  submitted 
that  the  question  was  on  the  second  ground  :  Is  a  bona  fide  claim 
of  right  an  answer  to  a  prosecution  under  the  27th  section  of  the 
Brands  Act  ? 

Harding  J.  :   As  in  a  larceny  case. 

Butledge  A.G.  (Lilley  with  him),  shewed  cause  for  the  magis- 
trates, and  submitted  that  by  the  evidence  of  defendant,  in 
December,  1883,  the  calf  was  being  mothered  by  his  cow  and  was 
two  weeks  old  ;  and  that  in  August,  1884,  she  produced  another 
calf.  That  was  improbable  ;  it  was  a  question  of  the  usual 
period  of  gestation.  He  cited  Curran  v.  Dowzer,  Q.L.J. ,  vol.  II., 
p.  45,  as  to  intention.  While  there  must  be  reasonable  proof  on 
the  part  of  the  prosecution  that  there  was  a  wilful  branding,  on 
the  other  hand  there  must  be  such  ground  for  a  claim  of  bona  fides 
as  would  convince  reasonable  men  that  the  calf  was  the  property 
of  the  brander. 

Lilley  C.J.  :  On  the  question  of  bona  fides,  the  magistrates 
are  judges  of  the  facts,  like  a  jury. 

Butledge  A.O.  :  The  magistrates  clearly  disbelieved  defendant's 
evidence. 

Lilley  followed,  and  submitted  that  the  onus  of  proof  lay  on  the 
defendant ;   and  that  the  fact  was  determined  by  the  justices. 

Chvhb  Q.C:  [Drake  with  him)  showed  cause  for  the  prosecutor, 
Brannighan,  and  submitted  that  the  fact,  as  to  a  colour  of  title, 
was  determined  by  the  justices,  who  were  the  proper  tribunal. 
The  Court  would  not  review  their  decision  on  the  fact. 


168  QUEENSLAND  JUSTICE   OP   THE   PEACE. 

Williams  v.  Lilley  C.J.  :    They  must  determine  not  only  that  it  was  not 

his  property,  and  whether  his  claim  was  a  good  one,  but  that  it 

was  made  in  good  faith.  His  claim  was  decided  to  be  wrong, 
but  did  he  make  it  in  good  faith  ?     Did  they  determine  that  ? 

Beal,  in  reply,  submitted  that  the  justices  decided  that  wilfully 
branding  was  intentionally  branding.  Defendant  did  not  get  the 
benefit  of  a  consideration  of  the  real  state  of  the  law — that  a  bona 
fide  claim  of  right  was  a  good  defence. 

Lilley  C.J.  LiLLEy  C.J.  :    If  they  did  not  admit  that  defence,  it  would  be 

a  mis-trial.  If  the  only  evidence  that  they  did  not  admit  is,  as  a 
proposition  of  law,  that  they  decided  against  him,  it  is  not  suffi- 
cient ground.  The  rule  is  discharged  with  costs.  As  to  the  law, 
we  are  quite  clear  that  a  party  charged  with  an  offence  under  this 
section  (No.  27)  of  the  Brands  Act  can  set  up  the  defence  that  he 
branded  an  animal  and  assumed  the  right  of  property  in  that  way 
under  the  bona  fide  behef  that  it  was  his  property;  in  other  words, 
that  a  bona  fide  claim  of  right  of  property  is  a  defence  against  a 
charge,  much  in  the  same  way  that  it  is  in  larceny.  When  a  man 
takes  property,  honestly  beheving  it  to  be  his  own,  and  it  turns 
out  that  it  is  not  his,  he  is  not  answerable  to  the  law  for  a  criminal 
prosecution. 

SoHcitor  for  applicant :  Chambers,  Brisbane  ;  agent  for  Barnett, 
Cooktown. 

Solicitor  for  prosecutor — Thynne,  Brisbane. 
Solicitor  for  Justices  :   The  Crown  Solicitor. 


[Full  Couet.] 

REGINA  V.  JUDGE. 

[2  Q.I,.J.  61.] 

1885.  Information — Description  of  person  murdered. 

1'  The  information  eiarged  the  prisoner  with  murder,  and  the  child  who  was 

Lilley  C.J.  alleged  to  have  been  murdered  was  described  in  the  information  as  a  certain  male 

Harding  J.         ^j^jj^  ^.j^^^^^  lately  before  born  of  the  body  of  her  the  prisoner,  and  that  the  name  of 

the  murdered  child  teas  to  Her  Majesty's  Attomey-Oenerai  unknown.     There  was 

evidence  that  the  child  was  bom  three  months  after  the  prisoner's  marriage,  and 
Ihat  the  prisoner's  husband  was  not  the  father  of  the  child. 
Hdd,  that  the  child  was  sufficiently  described  in  the  information. 

This  was  a  special  case  stated  by  Mr.  Justice  Harding  : — 


CRIMINAL  REPORTS,   1860—1907.  169 

1.  The  prisoner  was  tried  before  me  at  the  Criminal  Sittings  Begina  v.  Jddoe. 
of  this  Honorable  Court,  holden  at  Rockhampton,  on  the  21st 

day  of  April,  1885,  on  an  information  presented  on  the  same  day, 
whereby  she  was  charged  as  follows  : — "  That  Annie  Judge  on 
the  fifteenth  day  of  December,  in  the  year  of  our  Lord  one  thousand 
«ight  hundred  and  eighty-four,  at  Sandy  Creek,  in  the  Colony  of 
Queensland,  feloniously,  wilfully,  and  of  her  mahce  aforethought 
did  kill  and  murder  a  certain  male  child  then  lately  before  born  of 
the  body  of  her  the  said  Annie  Judge,  whose  name  is  to  Her 
Majesty's  Attorney-General  unknown." 

2.  So  far  as  it  is  material  for  the  consideration  of  the  point 
leserved  in  this  case  the  evidence  was  as  follows  : — 

Jane  Brown  deposed  amongst  other  things  as  follows  : — "  On 

the  15th  of  December  last  I  saw  the  prisoner She 

appeared  to   be   greatly   in   the   family   way Mrs. 

Whattshell    fetched    the  prisoner's    husband    home 

The  prisoner's  husband  fetched  a  nurse  from  Clermont.  Mrs. 
Parsons  was  her  name." 

Mary  Ann  Parsons  deposed  amongst  other  things  as  follows  : — 
■"  On  Monday,  15th  December  last,  her  husband,  Mr.  Judge, 
came  for  me.  .  .  .  She  kept  saying  there  was  no  baby. 
She  said  '  how  do  you  think  it  could  be  a  baby  and  I  only  three 
months  married.'  Soon  after  this  her  husband  came  home.  He 
spoke  to  her  and  asked  her  to  tell  what  was  the  matter.  I  said 
to  her  husband,  '  don't  be  rash  ;  try  if  you  can't  coax  her  to  tell 
ail  about  it.'  She  said  to  her  husband,  '  I  won't  teU  you,  I'U  tell 
Mrs.  Parsons.'  I  went  in  and  said,  '  now  come  tell  me  what 
you  have  done  with  it.'  She  said,  '  rise  up  the  corner  of  the 
mattress  behind  me  and  you  will  find  it.'  I  raised  up  the  corner 
of  the  mattress  and  I  saw  the  child  lying  on  its  face.  It  was  a 
male  child.  I  picked  it  up.  .  .  .  When  I  took  the  child 
out  I  asked,  '  who  is  the  father  of  it  ?  '  She  said,  '  I've  been  but 
three  months  married.'  She  told  me  who  the  father  was.  She 
did  not  name  her  husband.  .  .  .  The  prisoner  gave  no  name 
to  the  child.     I  never  heard  that  it  had  any  name  of  its  own." 

William  Fitzmorris  deposed  amongst  other  things  : — "  I  saw 
the  prisoner's  husband  there." 

3.  At  the  conclusion  of  the  case  for  the  Crown,  I  called  the 
attention  of  the  Attorney-General  to  the  state  of  the  evidence, 
and  he  did  not  ask  leave  to  amend. 

4.  In  my  summing  up  I  told  the  jury  that  it  was  necessary 
for  the  Crown  to  prove  that  the  name  of  the  male  child  was  to  Her 


170  QUIENSLAND  JUSTICE   OF  THE   PEACE. 

Beoina  v.  Jddge.  Majesty's  Attorney-General  unknown,  and  that  if  they  did  not 
find  it  was  they  must  find  a  verdict  of  not  guilty. 

5.  I  reserved  the  point  as  to  the  sufficiency  of  the  evidence  to 
support  a  conviction  for  the  consideration  of  this  Honorable 
Court. 

6.  The  jury  found  a  verdict  of  guilty,  and  I  passed  a  sentence 
of  death. 

(Signed)  Geobge  R.  Haeding,  J. 

5th  May,   1885. 

The  question  for  the  Court  was  whether  the  description  of  the 
child  alleged  in  the  information  to  have  been  murdered,  as  of 
name  "  to  Her  Majesty's  Attorney-General  unknown "  was  a 
sufficient  description. 

The  Attorney-General  {A.  Rutledge),  and  Real  with  him,  for  the 
prosecution. 

Mansfield  for  the  prisoner. 

The  Attorney-General,  in  support  of  the  conviction,  submitted 
that  the  evidence  showed  that  the  child  had  been  lately  born  of  the 
body  of  Annie  Judge,  but  had  never  been  seen  alive,  and  had 
not  acquired  a  name  from  Judge,  or  from  anybody  else,  or  the 
reputation  of  such.  He  cited  Reg.  v.  Bliss,  2  Moo.  CO.,  93  ; 
and  Reg.  v.  Willis,  1  Den.  C.C.,  80.  In  the  latter  the  prisoner 
was  not  a  married  woman  ;   here  she  was. 

Lilley  G.J.  :  There  it  was  a  bastard  of  no  name.  Here  being 
bom  in  wedlock,  the  question  is  does  it  acquire  the  name  of  the 
husband  ?  Is  a  name  more  than  a  matter  of  reputation  1 
Strictly  speaking,  if  the  child  had  been  born  in  the  house,  and 
handed  about  for  a  day,  it  would  probably  have  the  family  name 
at  least,  by  reputation.  It  had  not  been  baptised.  Was  there 
proof  of  its  legitimacy,  properly  received  ?  Ordinarily  a  parent's 
evidence  cannot  be  heard  to  bastardize  his  own  offspring  on  grounds 
of  public  morality  and  decency.  Non-access  cannot  be  sworn  to. 
Still  there  is  no  objection  to  a  woman  swearing  that  the  child 
is  not  that  of  her  husband. 

The  Attorney-General :  The  declaration  of  Judge  to  the  witness, 
Parsons,  is  conclusive  that  the  child  was  a  bastard.  There  can 
be  no  doubt  the  child  had  not  obtained  a  name  by  reputation,  as 
it  was  killed  almost  upon  birth.  A  name  itself  is  acquired  by 
reputation — Luscombe  v.  Yates,  5  B.  <&  Aid.,  544.  The  fact  that 
the  child  is  accurately  described  so  as  to  point  to  the  identity  of 
it,  as  the  victim  of  the  crime  beyond  a  doubt  or  question,  fulfils 


CEIMINAL  EEPOETS,  1860—1907.  171 

the  requirements  of  the  law  ;  and  the  child,  having  been  strangled   Eeoina  v.  Judoe. 
almost  at  the  instant  of  birth,  had  not  acquired  any  name. 

Real  followed :  The  description  was  sufficient  apart  from 
description  of  name  unknown.  Reg.  v.  Waters,  1  Den.  G.C.,  356. 
All  names  are  acquired  by  reputation.  Bastards  have  a  right 
to  neither  parent's  name.  Ste'ph.  Comm.,  Ed.,  '74,  Vol.  II.,  299w. 
This  case  is  within  the  one  in  Denison  ;  and  the  child  here  was  a 
bastard.  Here,  first,  the  woman  denied  having  a  child  ;  second, 
concealed  the  fact  from  her  husband.  These  two  circumstances 
are  stated  as  evidence  of  illegitimacy,  in  Morris  v.  Davies.  There 
was  evidence  for  the  jury  of  illegitimacy  ;  and  nobody  had 
imputed  the  name  of  Judge.  The  description  was  therefore 
sufficient  to  identify  the  subject  of  the  crime. 

Lilley  C.J.  :  She  imputed  neither  name,  nor  parentage  to 
Judge. 

Mansfield  :  There  is  a  fatal  variance  in  the  information  if  the 
child  was  legitimate.  The  first  part  would  then  be  sufficient — 
"  A  certain  male  child  then  lately  before  born  of  the  body  of  her 
the  said  Annie  Judge."  Reg.  v.  Biss  {rep.  also  8  Gar.  and  P., 
773)  ;  Reg.  v.  Campbell,  1  Car.  and  K.,  82,  also  cited.  Reason- 
able diligence  must  be  used  by  Crown.  Here  they  did  not  use 
it.  Reg.  v.  Willis,  and  Reg.  v.  Hogg,  2  Moo.  and  Rob.,  380  ; 
and  R.  v.  Waters.  The  child  was  illegitimate  ;  they  do  not  apply 
then  unless  the  child  here  is  proved  illegitimate.  Neither  husband 
nor  wife  can  be  allowed  here  to  prove  non-access.  In  A.  v.  A., 
25  L.J.  Gh.,  136,  the  M.R.  allowed  the  wife  to  be  asked  how  long 
she  had  known  her  husband  before  marriage  ;  on  her  answering 
more  than  a  year,  he  allowed  no  further  question  as  to  access.  The 
presumption  here  is  in  favour  of  legitimacy.  There  is  no  evidence 
of  concealment  from  husband  more  than  from  anybody  else. 
There  is  no  evidence  of  illegitimacy  to  rebut  the  contrary  pre- 
sumpton.  Immediately  on  birth,  being  her  child,  it  should  take 
the  name  of  Judge.     Steph.  Comm.,  Ed.  '74,  Vol.  II.,  299  n. 

Lilley  G.J.  referred  to  Hargrave  v.  Hargrave,  2  Car.  and  K.,  701. 

Lilley  C.J.  gave  judgment  as  follows  : — In  this  case  the  IJiHey  C.J. 
information  charged  the  prisoner  with  murder,  and  the  child 
who  was  alleged  to  have  been  murdered  was  described  in  the 
information  as  "a  certain  male  child  then  lately  before  born 
of  the  body  of  her  the  said  Annie  Judge."  If  the  information 
had  stopped  there,  she  being  a  married  woman,  I  think  the  law 
must  be  taken  to  be  that  the  child  had  acquired  from  the  moment 


172  QUEENSLAND   JUSTICE   OF  THE   PEACE. 

Eeqina  v.  Judge    of  j^g  birth,  if  a  legitimate  child,  the  reputation  of  her  name. 
LilieyC.J.        That  name  would  be  Judge.     I  think  it  would  be  a  sound  practice, 
which  ought  to  be  followed  in  the  Crown  Office,  to  describe  the 
child  by  the  name  of  the  married  woman,  if  not  baptised.     In 
other  words,  I  think  it  is  the  law  that  a  child  born  legitimately  of 
married  people  has  the  name  of  the  presumed  father.     Under 
these  circumstances,  if  a  child  is  born  of  a    woman    after    her 
marriage,  it  is  presumed  to  be  legitimate  ;   but  that  is  a  presump- 
tion which  may  be  rebutted  ;   and,  I  suppose,  it  was  by  reason  of 
the  fact  that  in  this  case  it  was  rebuttable  that  the  Attorney- 
General  added  these  words  that  the  name  of  the  murdered  child 
"  Is,  to  Her  Majesty's  Attorney-General,  unknown."     If  our  idea 
of  the  law  is  correct  that  the  child  born  to  married  persons  bears 
by  reputation  from  the  instant  of  its  birth  the  name  of  the  family 
into  which  it  is  born,  it  would  not  be  right  on  the  part  of  the 
Attorney-General  to  describe  it  as  a  child  whose  name  to  him 
is  unknown.     I  presume  these  words  were  put  in  because  the 
Attorney-General  knew   that   the   legitimacy   of  the  child  was 
in  question,  or  Hkely  to  be  called  in  question.     As  the  reputation 
of  the  name  of  Judge,  which  would  attach  to  the  child  under 
ordinary   circumstances   as   the   child   of   a   married   woman,  is 
rebuttable,  it  seems  to  me  that  there  was  very  cogent  evidence 
to  go  to  the  jury  to  show  that  the  child  was  illegitimate,  and 
therefore  was  not  entitled  to  the  name  of  Judge,  and  by  reputation 
had  not  acquired  the  name,  or  right  to  go  by  that  name.    The 
mother  did  in  fact  conceal  the  child,  and  then  denied  that  the 
child  had  been  born,  and  wished  to  conceal  the  fact  altogether 
from  her  husband,  and  in  the  next  place  she  stated  to  the  married 
woman  in  whom  she  was  at  last  induced  to  place  confidence,  that 
the  child  was  the  child  of  a  person  whose  name  was  not  that  of  the 
husband.     Assuming  that  she  had  her  senses  about  her — and 
there  is  no  evidence  that  she  had  not — it  is  fair  to  believe  that  it 
was   an  illegitimate   child,   whose  name  was  to  the    Attorney- 
General  unknown  ;   because  in  law  it  is  clear  that  an  illegitimate 
child  has  no  right  to  the  name  of  either  its  father  or  mother,  unless 
by  reputation.     That  may  arise  by  imputation  very  quickly,  a 
few  moments  after  birth.     If  for  ever  so  short  a  period  of  time 
a  child  is  called  by  the  name  of  one  or  other  of  the  parents,  it  is 
sufficient.     This  child  was  murdered  a  few  moments  after  birth  ; 
and  there  is  no  evidence  that  she,  or  anybody,  gave    any  name 
to  it.     It  was  murdered  almost  immediately  after  it  was  born. 
I  think  the  information  is  perfectly  correct.     It  was  a  child  whose 


CRIMINAL  REPOETS,  1860-1907. 


173 


name  was  to  Her  Majesty's  Attorney- General  unknown.     The  Begixa  v.  Jodqe. 
jury  found  it  was  a  child  whose  name  was  to  him  unknown,  and        Lilley  C.J, 
I  think  the  conviction  must  be  affirmed. 


Haeding  J.  :  The  judgment  of  The  Chief  Justice,  as  far  as  it 
touches  upon  the  case,  I  fully  concur  in  ;  the  trial  took  place 
before  me  at  Rockhampton.  The  prisoner  was  not  defended ; 
there  was  no  help  for  it,  as  no  counsel,  or  soUcitors,  or  anybody 
who  could  possibly  defend  her  was  present ;  a  Judge  under  these 
circumstances,  has,  if  possible,  a  more  careful  duty  to  perform 
than  if  counsel  were  preserit.  I  watched  the  case  with  a  view 
of  saving  and  bringing  out  all  points  that  I  could  see,  which  should 
be  brought  out  for  the  prisoner,  and  amongst  others  arose  the 
question  as  to  the  admissibility  of  the  piece  of  evidence  which 
has  been  pointed  to,  and  to  the  possibility  of  a  variance  having 
arisen.  There  were  two  courses  to  take.  To  reject  the  evidence, 
which  I  should  have  done  and  have  always  done  where  the 
incUnation  of  my  mind  has  been  that  it  was  not  receivable.  The 
late  Mr.  Justice  Pring,  when  at  the  bar,  on  one  occasion  where  a 
prisoner  was  on  his  trial  for  murder,  strongly  argued  before  me 
that  certain  evidence  should  be  received  ;  he  argued,  receive 
the  evidence  and  reserve  a  point  if  there  is  any  doubt  about  its 
admissibiUty.  I  held  on  the  other  hand,  viz.  : — I  was  satisfied, 
that,  if  not  receivable,  it  did  not  lay  upon  me  to  allow  inadmissible 
evidence  to  go  to  the  jury,  and-allow  a  prisoner  to  be  convicted 
on  insufficient  evidence  and  go  through  the  torture  of  delay 
and  be  afterwards  discharged,  on  evidence  which  I  considered 
inadmissible.  I  follow  the  course,  I  beUeve,  taken  by  all  Judges 
at  the  trial  of  a  prisoner,  to  reject  all  evidence  as  to  the  inadmissi- 
biUty  of  which  I  have  no  doubt  myself.  If  my  opinion  is  in 
favour  of  the  admissibility  of  the  evidence,  yet  if,  from  my 
knowledge  of  the  law  and  the  authorities,  I  see  that  behind  that 
opinion  there  is  room  for  an  arguable  case,  I  consider  it  my 
duty  to  reserve  a  case,  however  strong  m.y  opinion  may  be.  I 
took  that  course  here.  The  other  course  was  to  direct  the  jury 
that  on  the  birth  of  the  child  it  acquired  the  name  of  its  parents 
by  law,  and  that  that  being  so,  the  Attorney-General  must  have 
known  its  name,  and  to  have  directed  an  acquittal.  Being  then 
as  now  of  the  opinion  that  the  information  was  sufficient,  but  yet 
having  then  in  my  own  mind's  eye  the  series  of  authorities,  perhaps 
not  in  the  accurate  way  in  which  they  have  been  put  at  the  bar  to- 
day, and  knowing  that  the  question  was  arguable,  I  thought 
it  well  to  reserve  the  point  and  having  done  so  and  the  matter 


Harding  J. 


174 


QUEENSLAND  JUSTICE   OF  THE   PEACE. 


Beoinau.  Oddob.   having  been  argued  at  length  at  the  bar,  I  think  the  conviction 
Harding  J.        must  be  upheld,  and  for  the  reasons  stated  by  His  Honor  The 
Chief  Justice. 

Mein  J.  Mein  J.  :    I  am  of  the  same  opinion.     The  Chief  Justice  has 

so  fully  entered  into  the  circumstances  of  the  case  and  the  law 
that  there  is  no  need  to  further  enter  upon  the  question.  I  consider 
that  the  law  assumes  that  a  child  born  in  wedlock  is  the  child  of  the 
husband,  and  that  it  takes  by  reputation  the  name  of  the  husband, 
until  proved  to  be  illegitimate.  In  this  case  the  question  reaUy 
turns  upon  the  fact  whether  there  Was  sufficient  evidence  to  go 
to  the  jury  to  prove  the  child  illegitimate.  I  think  there  was. 
The  concealment  of  birth  by  the  mother  from  her  husband  and  the 
denial  of  having  given  birth  to  the  child  come  within  the  case  of 
Hardgrave  v.  Hardgrave.  I  think,  the  mother  having  done  that, 
there  was  evidence  to  go  to  the  jury  as  to  the  illegitimacy ;  and 
that  as  the  child  was  killed  immediately  after  birth  it  could  not, 
being  illegitimate,  by  any  possibility  have  acquired  a  name  by 
reputation.  The  Attorney-General  described  the  child  correctly 
in  the  indictment. 

Conviction  affirmed. 

Solicitor  for  Crown  :    Crown  Solicitor. 


1885. 

21st  July. 
Lilley  C.J. 


[Ipswich  Circtjit  Cotjet.] 
REGINA  V.  ALEX.  DIXON. 

[2  Q.L.J.  81.    Note. — 29  Vic,  No.  6,  s.  65  is  repealed.     See  now  definition  of 
dwelling-house  in  s.  1  of  Code.    See  R.  v.  Hamilton,  3  Q.L.J.  78,  post.] 

29   Vict.,  No.  6,  s.  65 — Dwelling-house — Canvas. 

Any  enclosed  structure  wherein  a  man  dwells  for  the  time  being  is  a  dwelling- 
house  within  the  meaning  of  the  Act. 

In  this  case,  the  prisoner  was  charged  with  the  larceny  of  a 
watch  and  other  articles,  from  the  dwelHng  house  of  the  prosecutor. 
The  prosecutor  was  then  and  had  been  for  about  six  months  prior 
to  the  date  of  the  alleged  offence,  Uving  in  a  tent  which  had  four 
sides,  through  one  of  which  ingress  and  egress  were  effected  by 
lifting  a  flap  which  could  be  closed  by  tying  down  or  otherwise 
securing  it.     The  tent  was  on  prosecutor's  own  land. 


CRIMINAL  REPORTS,   1860-1907. 

Power,  Acting  Crown  Prosecutor,  in  opening,  referred  to  the 
point  whether  a  tent  was  a  dwelling  house  within  the  meaning  of 
the  Act— 29  Vict.,  No.  6. 

Lilley  C.J.,  in  summing-up,  said  :  "  a  dwelUng  house  must  be, 
within  the  statute,  the  abode"  for  the  time  being  of  the  owner  of 
the  property  stolen.  There  is  no  doubt  that  this  is  of  canvas, 
but  it  is  not  essential  to  the  structure  of  the  house  that  it  should 
be  of  any  one  material.  It  is  material  that  it  should  be  closed, 
and  that  it  be  the  place  where  a  man  dwells  for  the  time  being. 
It  may  be  of  stone,  brick,  wood  or  mud  ;  and  in  some  countries 
even  of  paper.  Very  elegant  houses  in  Japan,  even  whole  cities, 
are  built  of  paper — papier  mache.  It  appears  to  me  that  if  a 
man  on  his  own  land  puts  up  a  structure  of  canvas,  and  goes  there 
to  eat,  sleep,  and  dwell,  it  is  essentially,  under  the  statute,  his 
dwelling  house." 


175 

Beoina  v.  Alex. 
.    DrxoN. 


Lilley  C.J. 


[Pull  Court.] 

REGINA  V.  PIEREMONT. 

[2  Q.L.J.  93.— Note.— Sec.  206  of  38  Vic,  No.  5  is  repealed.  See  now  see.  521  (d) 
of  the  Criminal  Code  to  lilce  eSeet.  Case  referred  to  in  R.  v.  Duncan,  4  Q.L.J. 
219,  post,  and  R.  v.  Hamilton  9  Q.L.J.  251,  post.] 

Insolvency  Act  of  1874  (38  Vict.,  No.  5,  s.  206) — Disposal  of  goods 
other  than  in  the  ordinary  way  of  trade. 

A  person  disposes  of  goods  other  than  in  the  ordinary  way  of  his  trade  within 
the  meaning  of  s.  206  of  the  Insolvency  Act,  who  puts  them  away  under  such 
circumstances  that  he  exhibits  an  intent,  and  that  the  jury  are  satisfied  that  he 
puts  them  away  beyond  the  reach  of  his  creditors,  under  the  statute. 

Held  also,  that  it  is  not  necessary  that  a  man  should  absolutely  part  with  the 
property,  if  he  puts  them  beyond  his  power  of  control,  or  that  of  his  trustee, 
assuming  that  the  disposition  was  not  in  the  ordinary  way  of  his  trade. 

This  was  a  special  case  stated  by  Mr.  Justice  Mein. 

The  prisoner  was  adjudged  insolvent  on  the  1st  May,  1885,  on  his  own  petition, 
which  was  presented  at  the  District  Registry  in  Insolvency  at  Townsville,  on  the 
17th  April,  1885,  and  was  tried  before  me  at  the  last  Criminal  Sittings  of  this 
Court,  held  in  Brisbane,  on  a  charge  of  misdemeanour  under  s.  206  (15)  of  The 
Insolvency  Act  of  1874,  for  having  at  Townsville  on  the  16th  March,  1885,  within 
four  months  next  before  the  presentation  of  his  petition  for  adjudication,  unlawfully 
disposed  of,  otherwise  than  in  the  ordinary  way  of  his  trade,  certain  property  of 
his,  consisting  of  91  cases  of  tea  and  25  boxes  of  tea,  which  he  had  obtained  on 
credit  and  had  not  paid  for. 


1885. 
December. 


176  QUEENSLAND    JUSTICE   OF  THE   PEACE. 

Keoina  v.  The  prisoner  started  in  business  as  a  produce  merchant  at  Townsville,  in  the 

PiKBEMONT.         month  of  August,  1884,  with  a  capital,  according  to  his  own  statement,  of  £125. 

On  an  examination  before  this  Court  in  its  Insolvency  Jurisdiction  which  was^ 
put  in  evidence  the  prisoner  admitted  that  he  did  not  pay  this  capital  into  any 
bank,  and  stated  that  he  used  it  in  purchasing  goods  for  cash  in  Sydney.  The 
prisoner  continued  to  carry  on  the  business  t)f  a  produce  merchant  at  Townsville, 
selling  wholesale  and  retail,  up  to  the  time  of  the  presentation  of  the  petition. 
In  the  month  of  December,  1884,  he  received  from  the  firm  of  Ponder,  Evans  & 
Co.,  of  Sydney,  tea  merchants,  £235  123.  5d.  worth  of  tea,  made  up  of  100  boxes, 
8  quarter-chests,  4  three-quarter  chests  and  79  half-chests,  which  he  had  purchased 
from  them  on  credit,  the  purchase  money  being  represented  by  a  promissory 
*  note  of  the  prisoner's  in  favor  of  that  firm,  which  matured  on  the  17th  of  April, 

1885,  and  has  never  been  paid.  The  tea  so  received  by  the  prisoner  was  bonded 
by  him  in  his  own  name  in  Townsville,  and  the  whole  of  it,  with  the  exception 
of  about  ten  half  chests,  still  remained  in  bond  in  the  prisoner's  name,  and  unsold 
at  the  time  of  his  insolvency. 

In  the  month  of  November,  1884,  the  prisoner  was  indebted  to  the  Queensland 
Mercantile  and  Agency  Co.,  Ltd.,  of  Brisbane,  of  which  Mi.  N.  J.  Howes  is  a 
Director,  in  the  sum  of  £250,  on  an  open  account.  He  incurred  a  further  liability 
to  that  company  in  December,  also  on  an  open  account,  to  the  extent  of  about 
£80.  On  the  21st  January,  1885,  a  promissory  note  of  £266  Os.  4d..  made  by  him  in 
favor  of  that  company  was  dishonored ;  and  at  the  beginning  of  March,  1885, 
the  total  liability  of  the  prisoner  to  the  Q.  M.  and  A.  Co.,  Ltd.,  including  his  liability 
in  respect  of  the  dishonored  promissory  note  amounted  to  about  £680. 

On  the  12th  January,  1885,  the  prisoner  wrote  to  Mr.  Howes  informing  him  that 
money  was  "  coming  in  very  badly  since  the  holidays,"  and  requesting  him  to 
renew  £150  of  the  amount  of  the  promissory  note  which  would  fall  due  to  his 
company  on  the  21st  of  that  month.  This  request  was  not  complied  with,  and  on 
the  21st  January,  the  day  on  which  the  promissory  note  became  due,  the  prisoner 
sent  an  urgent  telegram  to  Mr.  Howes  in  these  terms  : — "  Bill  due  to  day  short  of 
£150  wire  credit."  This  further  request  was  also  not  complied  with,  and  the 
promissory  note,  as  already  mentioned,  was  dishonored,  and  it  has  never  since 
been  paid. 

In  the  early  part  of  February,  1885,  the  prisoner  visited  Sydney.  Whilst  he 
was  there  he  opened  an  account  at  a  Bank  in  the  fictitious  name  of  Henry  Harris, 
and  deposited  to  the  credit  of  the  account  £607  7s.  5d.  Upon  his  examination 
before  this  Court,  he  stated  that  he  drew  the  whole  of  this  money  out  of  the  Bank ; 
that  he  kept  no  books  with  reference  to  it,  that  it  was  a  trust  account,  and  that 
he  gave  the  name  of  Harris  because  he  "  did  not  want  it  to  appear  that  he  had  an 
account  at  Sydney."  He  also  admitted  that  information  with  regard  to  this 
account  had  been  obtained  by  his  trustee  through  a  bank  slip  which  the  trustee 
had  found  amongst  his  papers,  and  which  he  (the  prisoner)  did  not  know  was  in 
Townsville. 

During  the  same  visit  to  Sydney  the  prisoner  between  the  7th  and  12th  of 
February,  bought  from  the  firm  of  Ponder,  Evans  and  Co.,  tea  to  the  value  of 
£446  7s.  Id.  The  tea  so  purchased  was  done  up  in  packets  of  lib.  each,  in  tins 
of  51b.  each,  and  in  boxes  of  101b.  each.     The  lib.  packets  amounted  in  value 


CRIMINAL   REPORTS,   1860-1907.  177 

to  £380  13s.  4cl.,  and  were  marked  by  Ponder,  Evans  and  Co.  with  a  special  brand,  Beoina  v.' 

r  T  "ff  H  W"  IW  O  W  T 

designed  by  the  prisoner,  which  included  the  name  of  the  prisoner  and  his  address  

as  a  produce  merchant  at  Towusville.  The  whole  of  this  tea  was  purchased  on 
credit,  and  the  purchase  money  was  represented  by  a  promissory  note  of  the 
prisoners  in  favor  of  Ponder,  Evans  and  Co.  for  £446  7s.  Id.  dated  5th  March, 
1885,  and  payable  four  months  after  date.  The  promissory  note  has  not,  nor  has 
any  of  the  purchase  money  of  the  tea,  ever  been  paid. 

The  prisoner  on  his  examination  before  the  Court  alleged  that  he  was  induced 
to  purchase  the  second  lot  of  tea  upon  the  representations  of  a  Mr.  Howlett, 
who  is  at  present  the  trustee  of  his  estate,  and  was  at  that  time  acting  as  the 
agent  in  Queensland  of  Ponder,  Evans  and  Co.,  that  another  firm  in  Townsville 
was  then  selling  similar  tea.  Mr.  Howlett,  however,  positively  denied  that  he 
had  ever  made  any  such  representations  to  the  prisoner,  and  asserted  that  he 
neither  induced  the  prisoner  to  purchase  the  tea  nor  brought  it  under  his  notice 
in  any  way  ;  that  the  prisoner  had  purchased  the  tea  from  Ponder,  Evans  and  Co, 
on  his  own  motion,  and  after  a  personal  examination  and  approval  of  the  tea. 

The  prisoner,  before  the  end  of  February,  returned  from  Sydney  to  Townsville. 
Whilst  he  was  passing  through  Brisbane,  he  waited  upon  and  had  a  conversation 
with  Mr.  Howes.  During  this  conversation,  reference  was  made  to  the  state  of 
the  prisoner's  account  with  the  Q.  M.  and  A.  Co.,  Ltd.,  and  Mr.  Howes  told  the 
prisoner  that  it  was  as  large  as  his  company  would  like  it  to  be,  and  that  they 
would  like  it  to  be  reduced.  No  reference  was  made  to  tea  or  any  other  goods, 
nor  was  anything  said  about  the  prisoner  sending  to  the  Q.  M.  and  A.  Co.,  Ltd., 
any  consignments. 

The  tea  purchased  in  February  was  shipped  by  Ponder,  Evans  and  Co.  to  the 
prisoner  in  91  cases  containing  the  lib.  packets  and  the  51b.  tins,  and  in  25  boxes 
containing  lOlbs.  each,  on  or  about  the  4th  March,  1885,  and  was  conveyed  from 
Sydney  to  Brisbane  by  the  S.S.  "  Leura,"  was  transhipped  from  the  "  Leura  "  to 
the  S.S.  "  Keilawarra  "  in  Brisbane,  and  was  conveyed  by  the  "  Keilawarra  "  to 
Townsville.  There  was  no  direct  evidence  as  to  the  date  on  which  the  "  Keila- 
warra "  reached  Townsville,  but  the  insolvent  stated  in  his  examination  before 
the  Court  that  in  the  ordinary  course,  the  "  Keilawarra  "  would  have  reached 
Townsville  about  the  11th  March. 

On  or  about  the  13th  March,  1885,  the  Q.  M.  and  A.  Co.,  Ltd.,  received  from 
the  prisoner  a  letter.  This  letter  was  not  produced  at  the  trial,  and  Mr.  Howes 
stated  that  neither  he  nor  the  clerks  in  his  company's  employment  could  find 
it  after  a  diligent  search.  Mr.  Howes  stated  that  the  letter  consisted  of  only  a 
few  lines,  and  that  in  it  the  prisoner  asked  his  company  if  they  would  make  him 
"  advances  over  tea  and  other  goods."  In  reply  to  this  letter  Mr.  Howes,  in  the 
name  of  his  company,  sent  the  following  telegram,  dated  13th  March,  1885. 

"  Ship  tea  on  consignment  will  place  five  hiindred  your  credit  against  over- 
draft account  reply  if  sending.'' 

The  prisoner  replied  by  telegram,  dated  14th  March,  1885,  in  the  following 
terms : — 

"  Goods  will  leave  here  Tuesday,  sell  to  best  advantage." 

On  the  16th  March,  1885,  the  prisoner,  without  having  examined  or  landed 
M 


178  QUEENSLAND  JUSTICE  OF  THE  PEACE, 

Bbgina  I).  any  of  the  tea  that  had  arrived  at  Townsville  in  the  "  Keilawarra  "  consigned  66 

'         cases  and  25  boxes  of  it  to  the  Q.M.  and  A.  Co.,  Ltd.,  and  obtained  from  the  agents 

of  that  steamer  at  Townsville  a  shipping  receipt  or  bill  of  lading  which  acknow- 
ledged that  the  prisoner  had  shipped  by  the  "  Keilawarra  "  to  Brisbane,  66  cases 
tea  and  25  boxes  tea,  consigned  to  the  Q.M.  and  A.  Co.,  Ltd.,  the  freight  thereof 
from  Townsville,  amounting  to  £9  8s.  lOd.,  being  charged  "  on."  On  the  same 
day  the  prisoner  sent  the  shipping  receipt  to  Mr.  Howes  with  a  memorandum  of 
which  the  following  is  a  copy : — 

"  Enclosed  please  find  S/R.  for  91  packages  tea  which  please  sell  on  my 

account.     The  boxes  are  invoiced  to  me  at  9d.  per  lb.  and  the  pink  packets 

at  Is.  4d.,  other  packets  at  Is.  2d.  in  bond.     More  goods  will  follow  next 

week." 

The  tea  so  sent  to  the  Q.  M.  and  A.  Co.,  Ltd.,  reached  Brisbane  in  due  oouise 

and  was  placed  by  that  company  in  bond  in  their  name.     They  subsequently  sold 

a  small  parcel  of  it  and  the  remainder  continued  in  bond  in  their  name,  until  the 

month  of  June,  1885,  when  it  was  transferred  to  the  trustee  of  the  prisoner's 

estate.     The  prisoner  had  not  previously  consigned  any  goods  to  the  Q.  M.  and  A. 

Co.,  Ltd. 

On  the  same  16th  of  March  the  prisoner  caused  the  balance  of  the  tea  that 
reached  Townsville  in  the  "  Keilawarra,"  consisting  of  25  cases,  to  be  taken 
from  the  "  Keilawarra  "  to  the  S.S.  "  Ocean,"  by  a  lighter,  and  the  cases  so 
placed  on  board  of  the  "  Ocean  "  were  conveyed  by  that  steamer  to  Sydney, 
consigned  to  a  firm  there  named  Symonds,  Howes  and  Co.,  of  whom  Mr.  Symonds 
was  the  prisoner's  brother-in-law.  No  bill  of  lading  of  the  tea  so  consigned  to 
Symonds,  Howes  and  Co.,  was  produced  at  the  trial.  It  was,  however,  proved 
that  Symonds,  Howes  and  Co.,  had  received  the  tea ;  but  there  was  no  evidence  . 
to  show  how  that  firm  had  disposed  of  it. 

The  prisoner  on  his  examination  before  the  Court  stated  that  the  tea  so  sent 
by  him  to  Symonds,  Howes  and  Co.,  consisted  of  15  cases,  each  containing  12  tins 
of  51b..,  and  10  cases  each  containing  80  packets,  and  that  he  sent  it  "  for  sale 
by  them  and  returns."  The  prisoner  also  admitted^that,  when  he  sent  the  tea 
to  Symonds,  Howes  and  Co.,  that  firm  held  an  unmatured  P/N  of  his  for 
£135  lOs.  6d.  which  was  afterwards  dishonored.  Mr.  Howlet  deposed  that  he 
had  made  application  to  Symonds,  Howes  and  Co.,  for  the  return  of  the  tea  but 
they  had  refused  to  give  it  up  and  that  he  was  suing  them  in  Sydney  for  its  value. 
On  his  examination  before  the  Court,  the  prisoner  stated  that  he  took  with  him 
from  Sydney  in  February  samples  of  the  tea  that  he  had  purchased  from  Ponder, 
Evans  and  Co.,  and  that  he  tried  from  that  time  up  to  the  time  he  sent  the  tea 
to  Sydney  to  sell  it,  but  that  it  was  "  rubbish  badly  packed  and  imsaleable," 
and  that  he  "  thought  it  would  realize  more  in  Sydney  or  Brisbane  than  in  Towns- 
ville, and  that  was  why  he  sent  it  to  Sydney."  He  at  the  same  time  admitted 
that  he  had  never  sent  any  other  consignment  of  goods  to  Sydney. 

Mr.  Howlett  deposed  that  the  prisoner  told  him,  about  the  time  when  he  con- 
signed the  tea  to  the  Q.  M.  and  A.  Co.,  Ltd.,  and  to  Symonds,  Howes  and  Co., 
that  "  trade  in  Townsville  was  never  better  than  it  was  at  that  time." 
Mr.  Howlett  also  stated  that,  about  a  week  or  ten  days  before  the  16th  March, 


CEIMINAL  REPORTS,  1860-1907.  179 

he  had  sold  teas  in  Townsville,  of  the  same  description  as  those  that  the  prisoner  Begina  u. 

had  purchased  from  Ponder,  Evans  and  Co.,  and  at  the  same  prices  as  had  been  ieke^ 

charged  to  the  prisoner. 

The  prisoner  did  not  at  any  time  inform  Ponder,  Evans  and  Co.  of  either  of  the 
consignments  by  him  to  the  Q.M.  and  A.  Co.,  Ltd.,  and  Symonds,  Howes  and  Co. 

At  the  conclusion  of  the  evidence  for  the  Crown,  Mr.  Lilley,  counsel  for  the 
prisoner,  submitted  that  there  was  no  case  to  go  to  the  jury,  and  asked  me  to  direct 
the  discharge  of  the  prisoner.  I  refused  to  comply  with  his  request,  and  the 
prisoner  was  found  "  Guilty  "  by  the  jury. 

After  the  verdict  of  the  jury  had  been  returned  and  recorded,  Mr.  Lilley 
requested  me  to  reserve  the  following  questions  of  law  for  the  consideration  of 
this  Court : — 

1.  Was  there  any  evidence  as  to  disposal  of  the  goods,  or  any  of  them,  within 

the  meaning  of  the  section  ? 

2.  Was  there  any  evidence  that  the  defendant  disposed  of  them  otherwise 

than  in  the  ordinary  way  of  trade  ? 

The  Attorney-General,  who  prosecuted  on  behalf  of  the  Crown,  thereupon 
subniitted  that  Mr.  Lilley  was  too  late  in  preferring  his  request,  as  the  statute 
required  that  the  application  of  prisoner's  counsel  should  be  made  "  diiring  the 
trial,"  and  argued  that  the  trial  had  been  concluded  by  the  return  of  the  jury's 
verdict.  I  overruled  the  Attorney-General's  objection  and  state  this  case  in 
consequence  of  the  application  by  the  prisoner's  counsel.  If  such  application 
had  not  been  made,  I  should  not,  in  the  exercise  of  my  own  discretion,  have  reserved 
any  question  for  the  consideration  of  this  Court,  as  I  was,  at  the  time,  satisfied 
that  there  was  sufficient  evidence  to  support  the  conviction. 

I  did  not  pass  judgment  on  the  conviction,  but  postponed  such  judgment  until 
the  questions  reserved  by  me  had  been  decided  by  this  Court,  and  committed  the 
prisoner  to  prison,  and  he  now  is  in  prison. 

The  question  for  the  opinion  of  the  court  substantially  is : — 

Was  there  any  evidence  to  support  the  conviction  ? 

Signed : — 

Chakles  Sttjam  Mein,  J. 
Supreme  Court,  Brisbane, 

28th  November,   1885. 

Real  and  Kinnaird  Rose  appeared  for  the  Crown. 

Lilley  opposed  the  conviction  and  opened  his  case. 

Lilley  C.J.,  referring  to  the  Attorney-General's  objection  to 
Mr.  Lilley' s  request  at  the  trial  to  reserve  a  case,  said  :  I  am  of 
opinion  that  a  motion  in  arrest  of  judgment  may  be  moved  even 
after  sentence,  so  long  as  the  proceedings  are  still  going  on,  if  the 
prisoner  has  not  been  removed.  During  the  trial  it  certainly 
can  be  raised.  The  proper  time  is  after  the  verdict  is  brought  in. 
He  referred  to  Reg.  v.  Martin,  1  Den.  G.C.,  398,  and  18  L.J.,  M.G., 
137.  In  the  English  Act  the  word  is  "  may  ;  "  here  it  is  "  shall." 
Apart  from  this  there  is  the  common  law  right  of  the  Judge  to 


180  QUEENSLAND  JUSTICE  OP  THE  PEACE. 

Regina  r.         reserve  a  point  for  his   brother    Judges.     We   hold     that    the 

PlEREMONT.  /-I  n  1  c        -T 

Attorney-Generals  objection  was  lutile. 

Lilley  submitted  that  under  the  subsection,  "  disposal  "  means 
that  a  man  m.ust  divest  himself  of  some  property  in  the  goods  ; 
must  lose  it  to  himself  and  his  creditors.  If  he  joins  them  in 
security  to  another,  it  is  pawn  ;  if  he  consigns  them  the  money 
is  his  or  his  creditors.  Had  the  prisoner's  goods  been  sold  by  the 
Q.M.  &  A.  Co.  at  good  prices,  and  the  money  held  for  his  trustee, 
what  objection  could  there  be  to  that  ?  Then  there  was  no 
evidence  as  to  the  ordinary  way  of  trade  by  a  commission  agent 
and  produce  merchant  at  Townsville.  There  may  be  abundant 
cases  of  fraud,  and  abundant  provisions  against  it,  but  if  he  does 
not  come  within  the  particular  section  under  which  he  is  indicted, 
there  cannot  be  a  conviction.  He  did  not  dispose  of  the  goods: ;: 
if  the  Q.  M.  &  A.  Co.  might  hold  the  goods  consigned  them  by 
him,  or  the  money  proceeds  from  their  sale,  that  was  pawning. 
Disposing  is  selling. 

Harding  J.  :  "  Dispose  "  is  the  highest  word  in  the  subsection  ; 
"big  enough  to  include  pawn  "  and  "  pledge." 

Lilley  :  On  the  cases  decided,  dispose  does  not  include  pawning 
and  pledging.  Beg.  v.  Bolus,  11  Cox  C.C.  610  ;  23  L.T.,  N.S., 
339  ;  Ex  parte  Brett ;  In  re  Hodgson,  1  Ch.D.,  151.  Reg.  v. 
Thomas,  11  Cox  C.C.  535. 

Harding  J.  :   Could  he  have  got  his  goods  back  again  ? 

Lilley:  Most  decidedly;  supposing  Symonds,  Howes.  &  Co. 
had  gone  insolvent,  he  could  have  stopped  them  in  transitu. 

Lilley  C.J.  :  But  they  were  never  taken  on  shore  at  Townsville. 
They  were  shipped  from  Sydney  and  were  then  sent  back  to  another 
merchant  in  the  same  street  in  Sydney. 

Lilley  :  He  could  have  stopped  them  in  transitu.  Until  they 
came  into  the  hands  of  Symonds,  Howes  &  Co.,  he  had  not  dis- 
posed of  them  ;  and  directly  they  fell  into  their  hands  in  Sydney,, 
the  disposal  if  complete,  was  complete  outside  the  jurisdiction 
of  the  Court. 

Lilley  C.J.  :  I  do  not  think  it  matters  under  this  statute  where 
the  goods  are  that  are  disposed  of  ;  if  it  was  property  he  was- 
trading  with,  or  could  trade  with  here. 

Lilley  cited  Beg.  v.  Bandinty,  4  Fos.  and  Fin.,  165. 

Lilley  C.J.  :  That  was  a  conspiracy  in  Paris  ;  here  it  is  a  case 
of  bringing  goods  within  the  jurisdiction. 


CRIMINAL  REPORTS,  1860-1907.  181 

lAlley  :    But  he  disposed  of  them  in  Sydney.     He  referred  to        Eeqina  o. 
1st  subsection  of  the  section  (206).  

lAlley  G.J.  :  I  think  the  word  "  dispose  "  is  used  here  to  avoid 
the  technical  consideration  of  pawn  or  pledge. 

Lilley  cited  Reg.  v.  Manser.  Prisoner  never  disposed  of  the 
goods.  He  consigned  to  the  Q.  M.  &  A.  Co.,  to  sell  at  the  best 
advantage,  and  to  Symonds,  Howes  and  Co.,  for  sale  and  return. 
They  could  not  hold  as  security  against  his  account  current 
with  them.  He  cited  Spalding  v.  Ruding,  6  Beav.,  376.  There 
must  be  some  divesting  of  interest  in  the  insolvent.  He  could 
at  any  time  have  brought  action  against  Q.  M.  &  A.  Co.  to  recover 
the  goods  ;  and  he  could  have  had  them  back  at  any  time,  upon 
paying  charges,  if  any,  upon  them.  They  could  not  hold  them  to 
satisfy  the  general  account.  Verivs  v.  Jewell,  4  Comp.  31  ; 
Saddler  and  Others  v.  Whitmore,  5  Jur.,  O.S.,  315  ;  Gibson  v. 
Bray,  1  Mo.,  519.  Then,  as  to  "  the  ordinary  way  of  trade," 
there  is  no  evidence  of  what  is  the  ordinary  way  of  trade  of  a 
commission  agent  and  produce  merchant  at  Townsville. 

Mein  J.  :  There  was  some  evidence. 

Lilley  G.J.  :  The  Court  will  generally  refuse  to  send  back  a 
case  reserved  for  amendment.     Roscoe,  p.  231,  referred  to. 

Lilley  :  There  is  no  evidence  on  the  point.  Prisoner  on  the 
other  hand  would  be  doing  probably  the  best  thing  in  sending 
his  goods  from  the  smaller  to  the  larger  market.  The  verdict 
should  be  set  aside. 

Beal,  in  reply  :  The  section  applies  to  disposal  of  them  in  any 
possible  way.  Part  of  these  goods  was  sold.  If  sending  alone 
was  not  disposal,  part  were  sent  to  auction  and  sold.  In  Ex  parte 
Brett,  they  were  consigning  merchants,  and  the  question  was 
whether  they  sent  goods  to  AustraUa  in  the  ordinary  course  of 
trade.  In  Reg.  v.  Thomas,  Lush  J.,  says,  "  You  cannot  say 
that  disposing  of  stock  in  trade  by  a  bill  of  sale,  is  disposing  of 
it  in  the  ordinary  way  of  trade  ;  that  must  be  by  selUng  over  the 
counter,"  p.  538.  He  sent  the  goods  after  he  was  specially  told  it 
would  be  placed  against  his  overdraft  with  the  Q.  M.  &  A.  Co. 
It  cannot  be  the  ordinary  course  of  honest  trade  to  ship  goods  to 
Brisbane  from  Sydney  and  then  on  further  to  Townsville,  for  the 
purpose  of  bringing  them  back  again.  It  cannot  be  "in  the 
ordinary  way  of  trade  "  to  dispose  of  goods  by  way  of  fraudulent 
preference.  There  is  sufficient  on  the  case  to  show  that  this 
could  not  be   "  in  the   ordinary  way  of    trade."     He   received 


182  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

Regina  v.        ^jj^g  goods  ;    had  not  paid  for  them  ;    sent  some  to  Sydney  where 

'        he  had  purchased  them,  and  not  to  the  person  from  whom  he  had 

purchased  them,  for  sale  and  return. 

Harding  J.  :  You  have  enough  to  show  what  was  done  ;  but 
not  enough  to  show  what  should  be  done. 

Lilley  G.J.  :  The  learned  Judge  will  amend  the  case.  You, 
Mr.  Real,  may  refer  to  the  evidence  ;  and  the  Judge  will  check 
you  and  put  what  you  refer  to  into  the  case. 

Real  did  so.  He  contended  :  Prisoner  had  hot  paid  for  these 
goods  or  any  of  them,  and  he  had  disposed  of  them  in  a  way 
which  would  amount  to  fraudulent  preference  ;  that  is,  not  the 
ordinary  course  of  trade. 

Hearing  adjourned  ;    the  Judge  to  amend  case. 

The  following  amendment  to  the  case  was  added : — 

I  DESIRE  to  amend  the  Case  already  submitted  by  me  and  filed  on  the  28th 
November  last,  by  the  addition  of  the  following  Statements : — 

At  the  trial  of  the  prisoner,  Mr.  Howes  gave  the  following,  amongst  other  evi- 
dence that  I  do  not  think  it  necessary  to  specially  refer  to. 
On  examination  in  chief  by  the  Attorney  General : — 

"  When  a  person  in  business  sends  goods  to  another  for  sale  the  seller  places 
"  the  proceeds,  as  a  matter  of  course,  to  the  credit  of  the  person  who 
"  sent  the  goods ;    that  is  what  is  usually  done  in  business  unless  there 
"  is  a  special  arrangement  to  the  contrary." 
On  cross-examination  by  Mr.  Lilley  : — 

"  I  have  had  plenty  other  goods  sent  to  me  from  the  North  in  this  way. 
"  It  is  quite  an  ordinary  thing  for  a  firm  up  North  who  have  unsaleable 
"  goods  to  send  them  down  to  Brisbane  for  sale  on  consignment.  We 
"  received  the  tea  on  consignment  to  sell  to  the  best  advantage.  The 
"  proceeds  of  the  sale  were  not  sufficient  to  pay  the  charges,  and  we 
"  handed  over  the  tea  unsold  to  the  Trustee.  We  offered  the  tea  to 
"  travellers,  and  it  was  not  a  saleable  line :  most  of  it  was  packet  teas." 
On  re-examination  by  the  Attorney  General : — 

"  I  have  not  had  plenty  of  goods  sent  to  me  by  people  who  have  gone  insolvent 

"  B.  month  after  they  sent  them.     It  is  quite  the  ordinary  thing  for 

"  persons  to  send  down  goods  to  Brisbane   for   sale   on   consignment 

■'  within  a  month  of  becoming  insolvent,  if  they  think  in  their  judgment 

"  it  is  the  best  thing  that  can  be  done  with  the  goods.    I  don't  say 

"it  is  quite  the  ordinary  thing  for  persons    to  send  a  large  parcel  of 

"  goods  to  one  of  their  creditors,  and  go  insolvent  a  month  afterwards." 

In  my  charge  to  the  jury,  I  told  them,  with  respect  to  the  teas  consigned  by  the 

prisoner  to  Symonds,  Howes  &  Co.,  and  to    the    Queensland   Mercantile  and 

Agency   Co.,  Ltd.,   respectively  that   if    they    were   satisfied   that  the  teas  so 

consigned  were,  in  either  case,  sent  to  the  consignees  in  order  that  they  might 


CRIMINAL  REPORTS,  1860-1907.  183 

appropriate  the  goods,  or  the  proceeds  of  their  sale  In  liquidation  of  any  subsisting  Begina  v. 

liability  of  the  prisoner's  to  them,  either  with  a  view  to  give  such  consignees  a        ^  iebe  o     . 

preference  over  the  other  creditors  of  the  prisoner,  or  so  that  the  effect  thereof 

would  be  to  defeat  or  delay  the  creditors  of  the  prisoner,  or  to  diminish  the  property 

to  be  divided  amongst  his  creditors,  there  would  be  a  disposal  by  the  prisoner 

of  the  goods  otherwise  than  in  the  ordinary  way  of  trade ;    and  that,  as  by  the 

Insolvency  law  the  transaction  would  be  fraudulent,  it  would  be  held  to  have  been 

prima  facie  tainted  with  fraud,  and  the  onus  would  be  thrown  upon  the  prisoner 

of  satisfying  them  that,  in  the  particular  transaction  he  had  no  intention  to  defraud. 

Charles  Stuart  Mbin,  J. 
Supreme  Court,  Brisbane, 

2nd  December,  1885. 

On  Thursday,  3rd  December,  Lilley  submitted  that  from  the 
cross-examination  of  Howes  it  might  be  in  the  ordinary  course 
of  trade.  There  is  no  evidence  that  prisoner's  act  was  not  in  the 
ordinary  course  of  trade  ;  that  is  his  particular  trade  in  Towns- 
viUe.  The  Crown  to  prove  it  not  so,  should  have  put  a  witness 
in  the  box  to  ask  him  if  he  were  acquainted  with  the  business  of 
a  produce  merchant  and  commission  agent  at  Townsville,  and  so 
forth.  It  was  never  shown  that  Howes  had  any  particular 
knowledge  of  business  at  all.     The  conviction  should  be  quashed. 

Lilley  C.J.  :  This  is  a  special  case  stated  by  the  learned  Judge  Lilley  C.J. 
for  the  opinion  of  the  Court,  and  the  question,  "  was  there  any 
evidence  to  support  the  conviction."  The  prisoner  was  indicted 
under  subsec.  15,  of  s.  206,  of  our  Insolvency  Act,  for  having  within 
four  months  next  before  the  presentation  of  his  petition  for 
adjudication,  unlawfully  disposed  of,  otherwise  than  in  the 
ordinary  way  of  his  trade,  some  portions  of  his  property  which  he 
had  obtained  on  credit,  and  not  paid  for.  Upon  that  indictment 
of  course  the  jury  must  be  satisfied  before  they  acquit,  that  he 
had  no  intention  to  defraud.  I  have  generally  told  a  jury  that 
they  must  be  satisfied  that  there  must  be  some  prima  facie  case 
of  fraud  before  they  can  deal  with  him  safely  under  this  particular 
section  ;  the  evidence  must  show  some  prima  facie  case  of  fraud 
against  him.  If  a  man  makes  a  disposition  of  his  goods  in  such  a 
way  as  to  be  obviously  out  of  the  ordinary  course  of  trade,  the  jury 
may  infer  from  that  that  he  had  some  intent  to  defraud.  The 
question  really  in  this  case  for  our  determination  is,  was  there  any 
evidence  that  he  disposed  of  them  in  any  way  other  than  the 
ordinary  way  of  trade.  AU  other  matters  under  the  subsection 
are  beyond  dispute  ;  they  were  all  proved.  Now  Mr.  Lilley  has 
argued  that,  before  a  man  can  be  charged  with  disposing  of  goods, 
he  must  absolutely  part  with  the  property  in  them.     I  cannot 


184  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

Eegina  v.        read  the  section  in  that  way.     I  think  if  he  puts  away  the  goods 

PlEBEMONT.  *'  ,  1  , 

or  part  or  them  under  such  circumstances  that  he  exhibits  an 

Lilley  C.J.  intent,  that  the  jury  are  satisfied  that  he  puts  them  away  beyond 
the  reach  of  his  creditors  under  the  statute,  he  might  be  held 
guilty  of  a  misdemeanour  under  the  subsection.  It  is  not  neces- 
sary that  a  man  should  absolutely  part  with  the  property,  if  he 
puts  them  beyond  his  power  or  control,  or  that  of  his  trustee  for 
division  of  the  proceeds  amongst  his  creditors,  assuming  that  the 
disposition  was  not  in  the  ordinary  way  of  trade.  The  most 
important  cases  that  have  been  cited  were  Ex  parte  Brett,  In  re 
Hodgson,  and  The  Queen  v.  Thomas.  In  Ex  parte  Brett  the 
Judge  made  an  observation  to  which  I  fully  subscribe  :  You 
cannot  convict  a  man  of  one  particular  charge  by  showing  some 
fraud  which  estabhshes  another  charge.  In  other  words,  you 
must  prove  the  offence  which  you  charge  against  a  man,  but  the 
same  set  of  circumstances  may  point  to  two  distinct  offences, 
and  justify  a  conviction  for  one  offence  or  the  other.  Take  this 
statute  for  instance.  Here  is  this  subsection  :  it  is  an  oSence 
to  dispose  of  goods  otherwise  than  in  the  ordinary  way  of  trade, 
with  intent  to  defraud,  of  course.  Under  subsec.  2  of  another 
section,  208,  if  he  has,  intending  to  defraud  his  creditors,  made 
any  gift,  deUvery,  transfer  of,  or  charge  on  his  property,  he  may 
be  found  guilty  of  a  misdemeanour  under  the  act.  Well,  a  de- 
livery is  a  disposal  of  goods  ;  so  the  same  circumstances  which 
point  to  an  offence  under  the  15th  subsection  of  s.  206,  may  point 
to  a  conviction  under  subsec.  2,  of  s.  208.  Or  again,  circum- 
stances that  justify  a  conviction  under  that  subsec.  15,  may  justify 
a  conviction  iinder  subsec.  14,  of  s.  206,  for  carrying  on  business  in 
property  obtained  on  credit  under  false  pretences,  and  not  paying 
for  the  same.  So  if  Ponder,  Evans  &  Co.,  had  prosecuted  him 
for  that  offence,  he  might  on  the  same  set  of  circumstances  have 
been  found  guilty  for  that.  Looking  at  the  particular  offence 
A\ith  which  he  is  charged,  is  there  any  reasonable  evidence  on 
which  the  jury  might  hold  him  to  be  guilty  ?  The  facts  are  in 
very  narrow  compass  ;  within  the  four  months  previous  to 
presentation  of  his  petition,  he  orders  two  large  parcels  of  goods 
from  Ponder,  Evan  &  Co.,  amounting  in  the  aggregate  to  about 
£600.  A  portion  of  them  he  sent  to  the  Queensland  Mercantile 
&  Agency  Co.  for  disposal :  they  say  on  consignment  for  sale. 
Another  large  consignment  he  sent  to  his  brother-in-law  in 
Sydney,  for  disposal  on  consignment  and  return.  Whether  he 
intended  that,  or  not,  is  a  question  for  the  jury.     At  the  time  he 


CRIMINAL  REPORTS,   1860-1907.  185 

delivered  these  goods  to  the  firm  of  which  his  brother-in-law  was  a        Reoina  v. 

1  .,  .  T  1  ,  r.  ■.  r        ,  PlEKEMONT. 

member,  there  was  evidence  that  that  firm  were  creditors  of  the  — - 

insolvent.  There  was  also  clear  evidence  that  the  Queensland  LiHeyCJ. 
Mercantile  &  Agency  Go.  were  creditors  of  the  insolvent  at  the 
time  they  received  the  parcel  of  goods  he  transmitted  to  them. 
The  question  for  the  jury  really  was,  was  that  a  fraudulent  prefer- 
ence ?  The  Judge  rightly  directed  the  jury  that  that  was  a 
fraudulent  preference,  if  there  was  an  intent  to  prefer.  If  he 
intended  when  giving  them  these  goods  to  do  so  by  way  of  prefer- 
ence, there  was  undoubtedly  a  fraudulent  preference,  because 
he  was  unable  to  meet  his  engagements  at  the  time  he  dispatched 
these  goods  to  the  Q.  M.  &  A.  Co.,  and  to  the  firm  which  included 
his  brother-in-law.  That  was  a  fraudulent  preference.  Well, 
now,  it  seems  to  me,  it  may  be  a  mere  question  of  law  under 
this  subsec.  15,  whether  a  man  may  make  such  a  disposition  that 
the  Judge  may  be  able  to  say  that  in  law  it  was  a  fraudulent 
preference  ;  but  generally  speaking  the  cases  that  come  under  this 
subsection  must  be  questions  of  fact  for  the  determination  of  the 
jury.  To  dispose  of  otherwise  than  in  the  ordinary  course  of  trade 
involves  a  question  of  fraud  ;  goods  must  be  disposed  of  fraudu- 
lently, or  the  jury  must  fail  to  be  satisfied  that  they  were  dis- 
posed of  with  intent  to  defraud.  Fraud  is  manifold  and  various, 
and  it  would  be  impossible  to  lay  down  any  absolute  rule  of 
judgment  for  Judge  or  Court  in  respect  of  fraud,  inasmuch  as  the 
rule  for  the  construction  of  such  conduct  must  be  as  various  as 
fraud  itseH.  It  is  the  same  in  respect  of  trade.  It  would  be 
impossible  to  say  in  each  particular  case,  as  a  matter  of  fact, 
and  especially  in  a  new  industry,  what  is  the  ordinary  course  of 
trade.  There  are  cases  in  which  no  doubt  it  is  obvious  to  ordinary 
common  sense  that  the  conduct  of  the  insolvent  was  not  in  the 
ordinary  course  of  trade.  For  instance,  in  that  case  of  Reg.  v. 
Thomas,  in  which  I  was  surprised  to  see,  Mr.  Justice  Lush  felt 
it  necessary  to  consult  his  colleague  on  circuit,  in  which  a 
grocer  in  the  village  of  Cheadle  executed  in'  favour  of  his 
sister,  to  whom  he  was  indebted,  a  bill  of  sale  on  the  whole  of  his 
property,  within  four  months  of  his  insolvency,  it  seemed  to  me 
so  obvious  to  ordinary  sense  that  that  could  not  be  the  ordinary 
course  of  trade  of  a  grocer,  that  the  consultation  between  the 
two  Judges  was  unnecessary.  It  was  a  fraudulent  preference,  and 
he  might  have  consulted  his  colleague  as  to  whether  it  was  a 
fraudulent  preference  at  law,  and  his  direction  to  the  jury  would 
be  perfectly  comprehensible  under  the  circumstances,  because  he 


186 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


Beoina  v. 

PlEEEMONT. 

Lilley  C.J. 


said  "  upon  the  evidence  already  given  you  have  no  alternative 
but  to  find  the  prisoner  guilty,"  therefore  he  rightly  assumed 
it  to  be  a  question  of  law.  But  as  a  general  rule  the  question  will 
resolve  itself  into  a  question  of  fact,  and  the  jury  wiU  decide 
from  their  daily  experience.  I  think  His  Honor's  direction  to 
the  jury  was  perfectly  clear  ;  he  regarded  it  as  a  fraudulent 
preference,  and  he  might  reasonably  take  that  view ;  and  the 
jury  might  reasonably  take  that  view.  By  delivering  all  these 
goods  to  his  brother's  firm,  or  to  the  Q.  M.  &  A.  Co.,  to  one  or 
other  of  them,  he  gave  one  creditor  a  fraudulent  preference  over 
his  other  creditors.  If  a  fraudulent  transaction,  then  it  could 
not  be  in  the  ordinary  way  of  trade.  We  have  not  yet  reached 
that  stage  of  commercial  morahty  in  which  fraud  becomes  part 
of  the  ordinary  way  of  trade.  We  have  no  alternative  but  to 
declare  that  the  conviction  must  be  affirmed.  The  prisoner  must 
be  brought  up  before  the  Judge  in  the  Criminal  Court  to  receive 
sentence  at  the  usual  hour  to-morrow  morning. 
Conviction  affirmed. 

Sohcitor  for  the  prosecution  :    The  Grown  Solicitor. 
Solicitors  for  prisoner  :   Roberts  &  Roberts. 


1886. 
June. 

Lilley  C.J. 
Harding  J. 
Mein  J. 


[Full  Couet.] 
THE  QUEEN  v.  AH  SAM. 

[2  Q.L.J.  144.  Note.— 29  Vic,  No.  11,  s.  15  Is  repealed.  See  now  s.  317  of  Criminal 
Code.  Compare  s.  196  of  Code  and  see  Criminal  Practice  Rules  Order  II., 
rule  2,  Wilson  &  Graham's  Code,  p.  392.] 

Offences  against  the  Person  Act  of  1865  (29  Vict.,  No.  11,  s.  15). 

Under  sec.  15  of  The  Offences  against  the  Person  Act  of  1865,  where  a  person 
is  charged  with  "  shooting  at "  another  with  intent  to  do  grievous  bodily  harm, 
it  is  not  necessary,  in  an  information  charging  the  offence,  to  insert  the  word 
"  at "  although  it  is  better  that  the  pleader  should  follow  the  language  of  the 
Statute  creating  the  offence. 

This  was  a  special  case  stated  by  His  Honor,  Mr.  Justice 
Cooper  as  follows  : — 

The  prisoner  (a  Chinaman)  was  tried  before  me  at  Townsville  on  the  28th  April 
last. 

The  information  contained  two  counts,  the  first  of  which  charged  that  he  "  one 
Ah  Tie  feloniously  and  imlawfully  did  shoot "  with  intent  to  murder  the  said 


CRIMINAL  REPORTS,  1860-1907.  187 

Ah  Tie  ;   and  the  second  charged  that  he  "  one  Ah  Tie  feloniously  and  unlawfully      The  Queen  v. 
did  shoot  "  with  intent  the  said  Ah  Tie  to  do  some  grievous  bodily  harm. 

Just  before  summing  up  to  the  jury  I  for  the  first  time  attentively  considered 
the  form  of  these  counts  and  pointed  out  to  the  Crown  Prosecutor  (Mr.  Power) 
that  I  was  unable  to  find  any  section  of  the  Offences  against  the  Persons  Act, 
1865  which  created  the  offence  of  "  shooting  "  with  intent,  and  that  in  my 
opinion  there  was  no  such  crime  at  Common  Law. 

Mr.  Power  then  asked  leave  to  amend  the  information  by  inserting  the  word 
"  at "  after  the  word  "  shoot "  in  both  counts,  which  I  declined  to  give  though 
I  would  have  done  so  if  I  had  been  of  opinion  that  I  had  the  power.  I  then  asked 
the  Cro^vn  Prosecutor  what  course  he  invited  me  to  take.  He  pressed  upon  me 
the  fact  that  the  information  was  a  copy  of  one  in  constant  use  in  the  Crown  Law 
Office  at  Brisbane  and  urged  me  to  let  the  case  go  to  the  jury.  I  agreed  to  do  so 
on  the  condition  that  I  should  state  a  Special  Case  on  the  prisoner's  behalf. 

I  then  summed  up  and  the  jury  convicted  the  prisoner  on  the  second  count. 

I  sentenced  him  to  five  years'  penal  servitude,  respited  the  execution  of  the  sentence 

and  reserved  for  the  opinion  of  the  Full  Court  the  questions,  whether  the  conviction 

is  sustainable  on  the  information  as  it  stands,  and  whether  I  had  the  power  to 

amend  it  in  the  way  suggested.  * 

Pope  A.  Cooper. 

Power,  Northern  Crown  Prosecutor,  appeared  for  the  Crown  ; 
lAlley,  on  behalf  of  the  prisoner. 

Lilley  :  This  is  an  offence  created  by  Statute,  and  the  exact 
words  of  the  Statute  should  be  followed.  Section  15  of  the 
Offences  against  the  Person  Act  had  the  words  "  shoot  at."  The 
form  of  the  ordinary  information  in  Archbold,  p.  710,  19th  ed.,  was 
"  did  by  drawing  a  trigger,"  *  *  "  discharge  at  and  against." 
Stephen's  Law  of  Criminal  Procedure,  art.  244,  p.  156,  and  Archbold, 
p.  64,  and  Bex  v.  Compton,  7  Car.  and  P.,  139  ;  Craven's  Case, 
Beg.  V.  Buss,  p.  14,  referred  to. 

Power  was  not  caUed  upon.  He  stated  that  the  Judge  was 
misinformed  as  to  the  form  of  indictment  in  question  being 
copied  from  the  Crown  Law  Office  at  Brisbane  ;  that  was  not  the 
case.     It  was  a  form  in  use  in  the  office  at  Bowen  only. 

Lilley  C.J.  :  We  must  take  cases  decided  by  single  Judges  LilleyC.J. 
as  guides,  not  absolutely  as  binding  authorities.  They  relate  to 
many  very  varied  Statutes ;  while  we  may  hsten  with  respect  to 
the  decisions  of  the  very  learned  men  who  have  presided  over  the 
EngHsh  Courts,  we  must  use  our  own  reason  upon  our  own  Statutes 
here.  In  this  matter  we  have  no  doubt  that  the  information  was 
sufficient.  It  contained  two  counts ;  as  to  the  first  it  is  not 
necessary  to  make  any  observations,  as  the  prisoner  was  not 
convicted  on  it.     But  upon  the  second,  on  which  a  conviction 


188  QUEENSLAND  JUSTICE  OP  THE  PEACE. 

The  Queen  v.  was  had,  I  must  make  one  or  two  observations,  though  at  no 
As^Sam.  length.  This  second  count  charged  that  he  "  one  Ah  Tie  felon- 
Lilley  C.J.  iously  and  unlawfully  did  shoot  "  with  intent  the  said  Ah  Tie  to  do 
some  grievous  bodily  harm.  There  is  a  slight  inversion  of  ex- 
pression there.  It  would  have  been  better  if  it  ran,  that  he. 
Ah  Sam,  did  feloniously  and  unlawfully  shoot  one  Ah  Tie,  with 
intent,  &c.  The  Enghsh  of  it  is  plain  enough  in  the  sense  that  I 
have  last  stated  it,  that  he  shot  Ah  Tie  with  intent  to  do  Ah  Tie 
grievous  bodily  harm.  Now  the  language  of  the  Statute  is 
"  shoot  at."  If  the  information  had  followed  the  Statute,  it 
would  have  been,  that  he  at  one  Ah  Tie  feloniously  and  unlaw- 
fully did  shoot,  with  intent.  In  fact  the  difficulty  has  apparently 
arisen  in  the  mind  of  the  learned  Judge  from  the  omission  of  the 
word  "  at."  The  charge  is,  "  shooting  with  intent,"  instead  of 
"  shooting  at  with  intent."  The  case  has  been  reserved  by  the 
Judge  himself ;  the  counsel,  or  soUcitor,  who  defended  the 
,  prisoner  did  not  see  any  difficulty.     I  confess  none  arises  in  my 

mind.  I  think,  if  a  man  is  charged  with  shooting  another  with 
intent,  that  is  sufficient  to  mean  that  he  shot  at  him.  At  the 
same  time  I  think  it  is  better  that  the  pleader  should  follow  the 
language  of  the  Statute  creating  the  offence  ;  that  is  a  sound 
general  rule  of  pleading.  But  if  there  be  an  allegation  of  an  offence 
by  prisoner  to  a  certain  intent,  although  the  precise — the  very — 
words  of  the  Statute  be  not  employed,  it  is  a  sufficient  allegation  of 
the  offence  against  the  prisoner.  It  is  a  rule  as  old  as — older  than 
— Coke.  He  gave  perhaps  the  aptest  expression  to  it.  "  Pleading 
is  the  language  of  the  law."  But  that  language  is  not  necessarily 
ipsissima  verba  of  the  Statute  creating  an  offence.  If  the  informa- 
tion be  in  English,  and  contain  the  precise  allegation  of  the  offence 
of  which  the  prisoner  is  to  be  tried,  that  is  sufficient ;  and  this 
information  seems  to  have  contained  that  precise  allegation  of-  the 
offence  on  which  the  prisoner  was  tried.  I  think  the  conviction 
should  be  confirmed. 

Harding  J.  Harding  and  Mein  JJ.  concurred. 

Mein  J. 

SoHcitor  for  Crown  :    The  Crown  Solicitor,  Brisbane. 

SoUcitor  for  prisoner  :   Bernays,  agent  for  E.  A.  Milford,  Cairns. 


CKIMINAL  EEPOETS,  1860—1907. 


189, 


[Full  Coubt.] 
REGINA  V.  HINCKLEY. 

[2  Q.L.J.  182. — Note. — Sec.  48  of  Offences  Against  the  Person  Act  Is  repealed. 
See  now  ss.  214,  215  of  Criminal  Code.  See  R.  v.  Camm,  1  Q.L.J.  136,  ante 
p.  138.] 

The  prisoner  was  indicted  under  s.  48  of  the  Offences  Against 
the  Person  Act  of  1865,  and  tried  before  The  Chief  Justice  and  a 
jury  at  the  November  Criminal  Sittings  at  Brisbane. 

On  the  question  of  age,  a  married  sister's  evidence  was  the 
only  available  evidence  of  the  date  of  the  child's  birth.  She 
deposed  to  that  event  occurring  either  the  12th  or  the  20th  of 
September,  1879  ;  and  that  she  was  at  home  when  her  httle  sister 
was  born. 

Lilley,  for  the  defence,  raised  the  point  that  this  was  insufficient 
evidence  ;  and  cited  the  case  of  Rex  v.  Wedge,  5  C.  &  P.,  298  ; 
Archbold's  Criminal  Pleading  and  Evidence,  20th  ed.,  815. 

Lilley  C.J.  :  If  it  had  been  a  question  of  a  day  or  so,  as  in 
that  case,  I  should  require  something  more  ;  but  there  is  evidence 
here  to  go  to  the  jury,  as  to  the  age  of  the  child.  There  are 
three  years  to  spare  here.  The  sister  does  not  swear  to  the  day, 
but  she  says  she  was  in  the  house  at  the  time  of  her  sister's  birth. 
It  is  a  matter  for  the  jury. 

SoUcitor  for  prosecution  :    The  Crown  Solicitor. 
SoUcitors  for  prisoner  :    Chambers,  Bruce,  and  McNab. 


1886. 
November. 


[Full  Court.] 
REG.  V.  KOGHIE  (a  Malay). 

[2  Q.L.J.  187. — Kote. — Sec.  49  ol  Criminal  Practice  Act  of  1865  is  repealed.    See 
now  ss.  668,  669,  and  670  of  Criminal  Code.] 

Practice — Oaths  Act  Amendment  Act  of  1884,  s.  2. 

A  Mahommedan  witness  said  he  would  be  sworn  on  the  Koran,  a  copy  of  which 
could  not  be  obtained,  and  a  form  of  affirmation  was  administered  instead. 
Held,  that  the  witness's  evidence  was  not  receivable  upon  such  affirmation, 
but  only  on  the  oath  upon  the  Koran. 

Special  case  stated  by  the  Judge  of  the  Northern  District 
Court,  under  s.  49  of  The  Criminal  Practice  Act  of  1865,  as  follows  : 


1887. 
February. 


190  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

Bbq.  u.  KoGHiB  The  prisoner  was  tried  before  me  at  the  Criminal  Sittings  of  the  Northern  District 

Court  holden  at  Maokay  on  the  1st  day  of  December,  1886,  on  a  charge  of  unlaw- 
fully wounding  one  Saradim,  a  Mahommedan. 

The  prisoner  was  undefended  and  did  not  understand  English. 

Charles  de  Harte,  who  had  had  considerable  experience  as  interpreter  in  courts 
in  Java,  and  who  is  a  cultivated  and  intelligent  man,  was  sworn  as  interpreter. 

Upon  Saradim  getting  into  the  witness  box,  he  was  asked  by  the  interpreter 
how  he  would  be  sworn  and  he  replied  "  On  the  Koran." 

I  directed  the  proper  officer  to  swear  the  witness  on  the  Koran. 

The  Registrar  then  informed  me  that  there  was  no  Koran  in  Court,  and  after 
inquiry  I  ascertained  that  none  could  be  procured. 

The  interpreter  informed  me  there  was  a  form  of  affirmation  which  was  some- 
times used  by  Mahommedans  in  lieu  of  the  oath  on  the  Koran,  but  that  such  affirma- 
tion was  not  as  binding  as  the  oath,  it  not  being  considered  as  solemn  a  proceeding 
by  the  Mahommedans. 

Upon  this  I  intimated  to  the  Crown  Prosecutor  that  I  could  not  receive  the 
evidence  of  Saradim  unless  under  seal  of  an  oath  on  the  Koran. 

The  Crown  Prosecutor  thereupon  pressed  me  to  allow  the  witness  to  affirm 
and  submitted  that  section  2  of  The  Oaths  Act  Amendm.Ritt  Act  of  1884  provided 
for  this  position  as  the  words  "  the  nature  of  an  oath  "  therein  must  be  read  as 
"  the  nature  of  an  oath  on  the  Bible." 

I  was  informed  that  in  the  Police  Court  evidence  by  Mahommedan  witnesses 
was  invariably  received  upon  affirmation,  and  also  that  without  the  evidence  of 
Saradim  the  Crown  would  be  unable  to  proceed,  and  that  an  adjournment  would  be 
inconvenient. 

After  hearing  the  Crown  Prosecutor  I  said  that  in  my  opinion  section  2  did  not 
apply  as  the  witness  neither  objected  to  take  an  oath  nor  was  incapable  of  compre- 
hending the  nature  of  an  oath,  nor  was  I  satisfied  that  an  oath  would  have  no 
binding  effect  on  his  conscience  within  the  meaning  of  that  section. 

Upon  the  whole,  however,  having  in  view  the  practise  of  the  Police  Court,  I 
deemed  it  advisable  to  get  an  authoritative  exposition  of  the  law  and  accordingly 
admitted  the  evidence  upon  affirmation  and  reserved  the  point  for  the  considera- 
tion of  the  Full  Court. 

The  prisoner  was  convicted  and  sentenced  to  12  months'  imprisonment  with 
hard  labour. 

I  respited  execution  of  the  judgment  and  committed  the  prisoner  to  prison  by 
virtue  of  section  48  of  The  Criminal  Practice  Act  of  1865. 

The  questions  for  the  consideration  of  the  Full  Court  are — 

1.  Was  the  evidence  of  Saradim  receivable  otherwise  than  upon  oath  on  the 
Koran  ? 

2.  What  order  does  the  Full  Court  see  fit  to  make  ? 

A.  B.  Noel, 

Judge  N.D.  Court. 
Southport,  Jan.  18,  1887. 

Power  appeared  for  the  Crown.     Prisoner  was  not  represented. 


CEIMINAL   REPORTS,   1860-1907.  191 

LiLLEY  C.J.  :  Here  the  man  said  that  he  would  be  sworn  on  ^^°-  «•  Koohib. 
the  Koran.  That  was  a  binding  oath  on  his  conscience  ;  it  Lilley  C.J. 
as  obhgatory  on  him.  Evidence  was  admitted  against  the 
prisoner  which  ought  not  to  have  been  admitted  ;  and  it  was  the 
only  evidence  against  him.  It  is  clear  the  prosecutor  ought 
to  have  been  sworn  on  the  Koran ;  the  oath  should  have  been 
administered  to  him  which  he  declared  would  be  binding  upon 
his  conscience.  The  order,  under  the  49th  section  of  the  Criminal 
Practice  Act,  will  be — judgment  to  be  avoided  and  the  prisoner 
to  be  discharged  ;   this  order  to  be  entered  on  the  record. 

Solicitor  for  the  Crown  :    Gill,  Crown  SoUcitor,  Brisbane. 


[Full  Court.] 
SWANWICK  V.  MILLS. 

[3  Q.L.J.  12.— Note.— 29  Vic,  No.  6,  s.  107,  is  repealed.    See  now  s.  135  of  Criminal 

Code  to  like  effect.] 

The  Larceny  Act  of  1865  (29  Vict.,  No.  6),  s.  107.  1887. 

April. 
An  advertisement  appeared  in  The  Telegraph  newspaper,  of  which  the  appellant  

was  the  printer,  in  these  words  : — "  Lost,  from  46  Charlotte  Street,  black  and        Lilley  G.J. 

tan  terrier  pup.     Finder  handsomely  rewarded ;   no  questions  asked,"  contrary  to         Mein  J 

the  provisions  of  s.  107  of  29  Vic,  No.  6.  

HM,  that  the  words  "  Lost  a  black  and  tan  terrier  pup  "  amounted  to  prima 
facie  evidence  against  the  appellant  that  a  dog  had  been  lost. 

Hdd  also,  that  an  action  will  lie  against  both  the  printer  and  publisher  of  an 
advertisement,  within  the  meaning  of  the  said  section,  and  although  the  printer 
and  the  publisher  be  one  and  the  same  person,  he  commits  two  separate  offences 
by  printing  and  publishing  such  an  advertisement. 

This  was  an  action  tried  before  The  Hon.  The  Chief  Justice 
at  the  March  Civil  Sittings  in  Brisbane  ;  and  was  brought  by 
plaintiff  against  defendant  as  the  printer  of  The  Telegraph  news- 
paper, under  the  provisions  of  the  Larceny  Act  of  1865,  s.  107, 
for  printing  in  the  issue  of  that  paper  on  August  6th,  1886,  the 
following  advertisement : — 

"Lost,  from  46  Charlotte  Street,  black  and  tan  terrier  pup. 
Finder  handsomely  rewarded ;    no  questions  asked."  |a^ 

On  the  hearing,  The  Chief  Justice  had  directed  a  verdict  for 
plaintiff ;  and  judgment  for  £50  and  costs  had  been  entered 
accordingly. 

His  Honor  held  that  proof  of  actual  loss  or  steaHng  of  the  dog 
was  not  necessary  on  the  part  of  the  plaintiff. 


192 


QUEENSLAND   JUSTICE   OF,  THE    PEACE. 


swanwigk  v. 
Mills. 


Harding  J. 


Power,  Byrnes  with  him,  on  behalf  of  the  appellant,  the  defend- 
ant below,  now  moved  for  a  judgment  of  non-suit ;  that  the 
judgment  for  plaintiff  for  £50  be  set  aside  with  costs  ;  or  that 
defendant  might  be  at  liberty  to  plead  the  judgment  recovered  in  a 
previous  action  against  him  as  publisher  of  The  Telegraph.  He 
submitted  that  there  was  no  offence  under  s.  107  of  the  Larceny 
Act,  which  is  a  penal  clause,  unless  there  was  proof  of  loss  or 
stealing  of  the  property.  If  there  was,  it  was  not  framed  to  catch, 
both  printer  and  publisher  for  one  offence. 

Harding  J.  referred  to  Cripps  v.  Burden,  2  Cowp.,  640. 

Byrnes  followed.  The  section  compelled  the  construction 
that  there  must  be  evidence  of  a  losing  or  steahng  ;  the  advertise- 
ment must  be  in  respect  of  property  lost  or  stolen.  The  pup 
may  have  been  lost  or  not ;  The  Telegraph  did  not,  by  admitting 
it  and  pubUshing  it  in  their  columns,  teU  the  world  at  large  that 
that  advertisement  was  true. 

Lilley,  King  with  him,  for  respondent,  the  plaintiff  below,  were 
not  called  upon. 

Harding  J.,  in  delivering  judgment,  said  :  This  is  an  appeal 
from  a  judgment  in  an  action  tried  by  His  Honor  The  Chief 
Justice,  the  plaintiff  being  F.  ff.  Swanwick,  and  the  defendant 
C.  Mills.  In  that  action  the  plaintiff  stated  that  on  the  6th  of 
August,  1886,  a  certain  advertisement  in  these  words, 

"Lost,  from  46  Charlotte  Street,  black  and  tan  terrier  pup. 
Finder  handsomely  rewarded;    no  questions  asked," 

appeared  in  The  Telegraph,  of  which  the  defendant  was  printer. 
His  Honor  gave  judgment  for  the  plaintiff.  The  action  was 
brought  under  s.  107  of  the  Larceny  Act,  which  enacts  that: — 

"Whosoever  shall  publicly  advertise  a  reward  for  the  return 
of  any  property  whatsoever  which  shall  have  been  stolen  or  lost, 
and  shall  in  such  advertisement  use  any  words  purporting  that 
no  questions  wiU  be  asked,  or  shall  make  use  of  any  words  in  any 
public  advertisement  purporting  that  a  reward  will  be  given 
or  paid  for  any  property  which  shall  have  been  stolen  or  lost, 
without  seizing  or  making  any  inquiry  after  the  person  producing 
such  property,  or  shall  promise  or  offer  in  any  such  public 
advertisement  to  return  to  any  pawnbroker  or  other  person 
who  may  have  bought  or  advanced  money  by  way  of  loan  upon 
any  property  stolen  or  lost  the  money  so  paid  or  advanced, 
or  any  other  sum  of  money  or  reward  for  the  return  of  such 
property,  or  shall  print  or  publish  any  such  advertisement, 
shall  forfeit  the  sum  of  £50  for  every  such  offence  to  any  person 
who  will  sue  for  the  same  by  action  of  debt,  to  be  recovered  with 
full  costs  of  suit." 


CRIMINAL  REPORTS,   1860-1907.  19^ 

His  Honor  held  that  it  was  unnecessary  to  prove,  in  order  to  ^MiLtf  " 

support  the  claim,  that  a  dog  had  been  lost  or  stolen.     Whether  or  

no  it  was  necessary  to  construe  the  statute  to  that  extent,  I  do  not 
consider  it  was  necessary  in  order  to  support  the  present  action. 
Although  possibly  and  very  probably  His  Honor's  ruling  was 
correct,  my  decision  turns  upon  these  circumstances  : — In  proof 
of  the  plaintifE's  case  the  advertisement  was  put  in,  which  states 
as  foUows, — Lost,  *  *  *  black  and  tan  terrier  pup.  That 
having  been  put  in  as  published  by  the  defendant  amounts  in 
my  mind  to  prima  facie  evidence  against  defendant  in  the  nature 
of  an  admission  by  him  that  such  a  dog  had  been  lost,  and  at  all 
events  supported  the  action  until  the  contrary  was  proved, 
In  other  words,  the  onus  of  proof  was  shifted  from  the  plaintiff 
to  the  defendant,  and  it  lay  upon  the  defendant  to  prove  that  such 
a  dog  had  not  been  lost.  His  Honor  accordingly  held  that  a  dog 
had  been  lost ;  and  in  my  opinion  that  was  sufficient  to  support 
the  action. 

Then  it  has  also  been  contended  by  the  defendant  that  an  action 
had  been  brought  on  the  same  advertisement  by  the  same  plaintiff 
for  a  penalty  under  the  same  section  in  respect  of  the  publica- 
tion of  this  advertisement.  The  defendant  says,  in  answer  to 
that,  we  have  already  suffered  judgment  against  us  for  the 
pubhcation  ;  you  cannot  now  sue  us  for  the  printing.  That 
depends  on  the  construction  of  the  latter  part  of  the  section.  I 
have  read  "  or  shall  print  or  publish  :  " — in  order  to  support  the 
defendant's  contention  that  "  or  "  must  be  changed  to- the  word 
"  and,"  and  the  section  must  read  "  print  and  publish."  I  think 
that  "  or  "  makes  the  section  disjunctive  ;  the  words  "  print  or 
publish  "  mean  two  different  functions,  and  that  whether  the 
paper  is  printed  and  pubhshed  by  the  same  person,  or  printed 
by  one  and  pubhshed  by  another,  makes  no  difference.  The 
man  who  prints  it,  whether  he  be  the  same  or  not  as  the  pubhsher, 
is  forbidden  to  print  the  advertisement ;  and  the  man  who  pub- 
lishes, whether  he  is  one  and  the  same  or  not  as  the  printer, 
commits  a  separate  offence  in  pubhshing  it.  I  consider  that  the 
first  is  no  bar  to  the  second.  On  the  whole,  I  think  the  judgment 
must  be  supported  with  the  usual  result,  that  defendant  must 
pay  costs. 

Mein  J.  :    I  am  also  of  opinion  that  this  appeal  should  be  Mein  J. 

refused  with  costs.  It  appears  to  me  that  the  last  portion  of  the 
section  was  framed  in  the  interests  of  pubHc  morahty  ;  and  that 
any  person,   who  either  prints  or  pubUshes  an  advertisement 


194  QUEENSLAND  JUSTICE   OP  THE   PEACE. 

SwANwicK  V.      professing  to  offer  a  reward  for  stolen  property,  with  the  condition 

'  attached  that  no  questions  will  be  asked,  should  be  Uable  to  the 

Mein  J.         penalty  imposed  with  costs.     Printing  and  publishing  are  not 
contemporaneous  acts.     First  printing  takes  place  ;  then  publish- 
ing, after  the  lapse  of  an  interval  of  time.     As  pointed  out  by 
The  Chief  Justice  and  conceded  by  counsel  for  the  appellant, 
printer  and  publisher  are  not  one  and  the  same  person ;    and  it 
was  conceded  that,   where  not  identical,  each  would  be  liable 
to  a  separate  penalty.     That  admission,  I  think,  puts  the  appellant 
out  of  court.     If  the  law  says  a  man  shall  not  do  a  certain  thing, 
and,  when  he  does,  shall  be  liable  to  a  penalty,  and  that  man 
goes  for  and  does  an  additional  thing,  which  is  forbidden,  he 
becomes  liable  to  a  separate  penalty.     If,  after  printing,  he  goes 
on  and  pubhshes,  he  is  liable  to  the  full  penalty  under  the  statute. 
On  that  I  think  the  appellant  fails.     On  the  first  point,  it  is  said 
that  the  onus  is  thrown  on  the  plaintiff  of  showing  that  the  article 
advertised  was  in  fact  lost  or  stolen.     In  this  case  the  appellant 
has  printed  a  pubhc  advertisement  in  which  it  is  stated  as  a  fact 
that  a  certain  dog  has  been  lost,  and  that  a  reward  will  be  given 
for  its  return,  and  "  no  questions  asked."     If  we  were  to  hold 
that  it  was  necessary  for  the  person  who  sues  for  the  penalty 
in  all  such  cases  to  prove  the  fact  which  has  been  admitted  by 
the  advertiser,  we  would  in  most  instances  make  this  Act  a  dead 
letter.     The  object  of  the  Legislature  is  that  a  person  who  makes 
admissions  is  estopped  from  denying  the  fact  in  an  action  of  this 
sort.     It  is  a  prima  facie  admission  on  his  part  of  the  statement 
made.     If  he  had  pleaded  that  there  was  no  loss  of  an  animal  from 
46,  Charlotte  Street,  I  am  inclined  to  think  that,  if  he  had  proved 
that  in  evidence,  plaintiff  would  have  been  out  of  court.    But 
there  was  no  plea  nor  evidence  of  the  kind  in  this  case  ;  and,  as  in 
all  other  cases,  the  appellant  is  estopped  by  his  own  admissions. 
I  think  he  has  failed  in  his  appeal. 

Lilley  C.J.  LiLLEY  C.J.  said  :    It  is  hardly  necessary  perhaps  for  me  to 

deliver  a  judgment  at  any  length  on  the  matter,  as  I  agree  entirely 
with  the  judgment  that  the  motion  must  be  dismissed  with  costs. 
I  adhere  to  my  opinion  that,  where  an  advertisement  of  this  kind 
is  inserted  in  a  pubUc  print,  stating  that  an  animal  has  been  lost 
or  stolen, — I  here  differ  from  my  brother  Mein — it  would  be  no 
answer,  even  by  way  of  plea,  that  no  animal  had  been  lost  or 
stolen.  I  think  a  defendant  is  precluded,  as  against  an  informer, 
by  his  own  statement  that  an  animal  is  lost  or  stolen.  That  is  my 
opinion  ;   I  consider  it  is  an  absolute  estoppel.     As  to  the  remain- 


CEIMINAL  RBPOETS,   1860—1907.  195 

der  of  the  judgment,  I  feel  it  is  perfectly  clear  that  the  poUcy  of       ^^mIl™  "' 

the  latter  part  of  the  statute  is,  as  pointed  out  by  my  brother  

Mein,  to  stop  persons  from  encouraging  others  to  publish  these  LUley  u.J. 
advertisements,  armouncing  that  they  are  willing  to  compound  a 
felony.  To  throw  upon  the  informer  the  onus  of  proof  would  be  a 
great  and  unnecessary  demand,  which  he  would  generally  be 
unable  to  satisfy.  There  is  no  name  of  the  person  who,  in  this 
instance  has  lost  the  animal.  How  is  an  informer  to  prove  the 
loss  under  these  circumstances  ?  There  is  generally  only  the 
advertisement — nothing  but  that — that  an  animal  has  been  lost 
or  stolen,  and  that,  if  the  person  having  it  will  take  it  to  a  particular 
place,  no  questions  will  be  asked.  The  statute,  it  seems  to  me, 
is  directed  against  a  breach  of  duty — the  immoraUty  of  printing 
or  pubUshing  an  advertisement  that  a  person  is  wilUng  to  com- 
pound a  felony.  It  is  directed  also  to  the  repression  of  anything 
that  will  prevent  the  discovery,  conviction,  and  punishment  of  a 
person  who  has  committed  a  felony.  I  agree  with  my  learned 
brothers,  except  in  that  expression  of  opinion  of  my  brother 
Mein  that — of  course  I  express  only  my  individual  opinion — it 
would  be  a  defence  to  say  the  dog  had  not  been  lost  or  stolen. 
The  question  is  still  open  to  an  enterprising  pleader  who  cares  to 
try  it. 

SoHcitors  for  appellant :    Chambers,  Bruce,  and  McNab. 
SoHcitor  for  respondent :     Winter. 


[Maeyboeough  Ciecuit  Couet.] 

THE  QUEEN  v.  HAMILTON. 

[3  Q.L.J.  78.— Note.— See  deflnition  o!  "  dwelling-house  "  in  see.  1  of  Criminal  Code.] 

Criminal  law — Arson — House — Injuries  to  Property  Act  of  1865  1888. 

(29  Vict.,  No.  5),  s.  3.  mhjiprii. 

A  tent  of  canvas  occupied  for  the  time  being  af3  a  dwelling   s  a  house  within         Lilley  G.J. 
the  meaning  of  the  statute,  29  Vict.,  No.  3,  s.  3. 

The  Queen  v.  Dixon,  2  Q.L.J.  81,  followed. 

The  prisoner  was  tried  at  the  Maryborough  Circuit  Court  on  26th 
April,  1888,  upon  an  information  under  s.  3  of  29  Vic,  No.  3,  for 
feloniously,  unlawfully  and  maliciously  setting  fire  to  a  dwelling- 
house. 


196 


Thk  Qceen  v. 
Hamilton. 


LiUey  C  J. 


QUEENSLAND  JUSTICE   OF  THE   PEACE. 

Chubb  Q.G.,  for  the  prosecution,  opened  that  it  would  be  shown 
in  evidence  that  the  dwelKng-house  in  question  was  an  ordinary 
canvas  tent,  occupied  and  used  by  its  owner  as  a  dweUing,  and 
submitted,  on  the  authority  of  The  Queen  v.  Dixon,  2  Q.L.J.  81, 
that  such  a  structure  was  a  house  within  the  meaning  of  the 
statute.     Evidence  having  been  adduced  establishing  these  facts, 

LiLLEY  C.J.,  in  summing  up,  directed  the  jury  that  a  tent  so 
occupied  and  used,  was  a  house,  within  the  meaning  of  the  section. 


1888. 
Jut.  e. 

Lilley  C.J. 
Harding  J. 
Meiii  J. 


[Full  Court.] 
REGINA  V.  ABRAHAM  STREET,  THE  YOUNGER. 

[3  Q.L.J.  88.— Note. — Criminal  Practice  Act  of  1865  is  repealed.  See  now  s.  668  of 
Criminal  Code.  As  to  joinder  ol  charges  in  information,  see  s.  568  of  Criminal 
Code.    As  to  stealing  as  a  clerk  or  servant,  see  s.  398  VI.  of  Criminal  Code.] 

Embezzlement — Proof  of  status  as  clerk — Admissibility  of  a  proof 
of  debt  sworn  to  by  prisoner  subsequent  to  date  of  embezzlement 
— Admissibility  of  a  power  of  attorney  dated  five  months  after 
embezzlement. 

One  S.,  being  in  the  employ  of  B.  and  Co.,  was  charged  with  three  several! 
embezzlements,  on  15th  March,  3rd  June,  and  12th  July.  At  the  trial  three 
proofs  of  debt  were  tendered,  dated  lith  April,  21st  May,  and  26th  July,  sworn  to- 
by S.  as  the  clerk  of  B.  and  Co. 

The  proof  of  26th  July  was  objected  to  by  counsel  for  the  prisoner,  but  admitted. 

Counsel  for  the  prisoner  tendered  a  power  of  attorney  given  by  B.  and  Co. 
to  the  prisoner,  dated  16th  December  in  the  same  year.     This  was  rejected. 

On  the  admissibility  of  these  two  documents  being  reserved  for  the  consideratioa 
of  the  Full  Court, 

Held,  that  averments  made  by  a  man  at  not  too  remote  a  period  from  the  date 
of  the  transactions  impeached  may  be  given  in  evidence  against  him,  and  that 
the  proof  of  debt  of  26th  July  was  therefore  rightly  admitted. 

That  the  power  of  attorney,  as  being  too  remote,  was  properly  rejected. 

Tbat  these  proofs  of  debt  constituted  a  chain  of  evidence  extending  over  the 
period  within  which  the  embezzlements  were  charged  to  have  been  committed 
and  that  in  the  one  objected  to  S.  swore  to  transactions  by  the  firm  during  the' 
same  period. 

Conviction  affirmed. 

Case  stated  for  the  consideration  of  the  Judges  of  the  Supreme 
Court  by  Mr.  Justice  Mein,  pursuant  to  the  provisions  of  The 
Criminal  Practice  Act  of  1865,  as  follows  : — 


CEIMINA.L  REPORTS,  1860—1907.  197 


Abraham  Stueet, 

THE  yOHNGEB. 


The  prisoner  was  tried  before  me  on  the  31st  May  and  the  j^^l^^f™^, 
1st  June,  1888,  at  the  present  Criminal  Sittings  of  this  Court 
in  Brisbane,  on  an  information  containing  three  counts,  whereby 
he  was  charged  with  having  (1)  on  the  15th  March,  1886,  embezzled 
£60  as  clerk  to  Barron  Lewis  Barnett  and  another,  (2)  on  the  3rd 
June,  1886,  embezzled  £330  as  clerk  to  the  same  persons,  and 
(3)  on  the  12th  July,  1886,  embezzled  £120  as  clerk  to  the  same 
persons.  The  jury  found  him  guilty  of  the  charges  contained 
in  the  first  and  third  counts,  and  not  guilty  of  the  charge  con- 
tained in  the  second  count  of  the  information. 

The  prisoner,  several  years  ago,  entered  the  service  of  Emanuel 
Barnett  and  Barron  Lewis  Barnett,  who  traded  as  merchants 
in  Brisbane  under  the  firm  of  E.  Barnett  &  Co.,  and  remained 
continuously  in  their  service  up  to  and  throughout  the  year  1886. 
During  the  whole  of  that  year  he'  held  the  position  of  confidential 
clerk  to  the  firm,  and  received  for  his  services  a  salary  of  £300  per 
annum,  paid  by  monthly  instalments.  Mr.  Emanuel  Barnett 
lived  in  England,  and  Mr.  B.  L.  Barnett,  the  partner  resident 
here,  had  the  management  and  control  of  the  business  in  Queens- 
land, and  the  prisoner  was  "  under  his  orders."  The  prisoner's 
duties,  prior  to  May,  1886,  were  to  keep  the  cash-book,  to  attend 
to  all  the  banking  accounts,  to  receive  accounts  when  paid,  to 
superintend  all  the  clerical  work  in  the  counting-house,  and  to 
exercise  a  general  -superintendence  and  management  over  the 
secured  customers  of  the  firm.  The  cash-box  was  kept  by 
Mr.  B.  L.  Barnett  up  to  May,  1886.  WhUst  it  was  so  kept  it 
was  the  duty  of  the  prisoner,  when'  he  received  any  cash  or 
cheque  on  behalf  of  the  firm,  to  at  once  credit  in  the  cash-book 
the  customer  who  paid  the  cash  or  cheque  with  the  amount  so 
paid.  It  was  then  his  duty  to  hand  over  to  Mr.  B.  L.  Barnett 
the  identical  cash  or  cheque  so  paid  and  credited.  In  May, 
1886,  Mr.  B.  L.  Barnett  ceased  to  keep  the  cash-box,  and  the 
prisoner  was  entrusted  with  the  duty  of  keeping  it  and  the  firm's 
cash.  Thereafter  it  was  the  prisoner's  duty,  after  crediting 
customers  in  the  cash-book  with  the  cash  or  cheques  paid  by  them, 
to  pay  all  cheques  and  large  amounts  of  cash  to  the  credit  of  the 
firm  of  E.  Barnett  &  Co.  with  their  bankers. 

The  prisoner,  on  the  15th  March,  1886,  received  on  behalf  of 
E.  Barnett  &  Co.  from  one  of  their  secured  customers  a  cheque 
for  £60,  and,  contrary  to  his  duty,  cashed  the  cheque  at  the  bank 
on  which  it  was  drawn,  and  appropriated  the  proceeds  to  his  own 
Tise,  without  either  crediting  the  customer  or  debiting  himself 
with  the  amount  in  the  cash-book,  or  in  any  of  the  other  books 
of  the  firm. 

On  the  12th  July,  1886,  the  prisoner  received  from  the  same 
secured  customer,  on  behalf  of  E.  Barnett  &  Co.,  another  cheque 
for  £120,  and,  contrary  to  his  duty,  caused  such  cheque  to  be 
cashed  at  the  bank  on  which  it  was  drawn,  and  appropriated  the 
proceeds  to  his  own  use,  without  either  crediting  the  customer 
or  debiting  himself  with  the  amount  in  the  cash-book,  or  in  any 
of  the  other  books  of  the  firm. 


198  QUEiENSLAND   JUSTICE    OF   THE    PEACE 

Beginai).  It  is  unnecessary  to  refer  to  the  moneys  mentioned  in  the 

Abraham  Stkeet,  gegon^   count    of   the   information,    as   the   prisoner,  as  abeady 
THKTO0NGEE.      gj.g^(.g^^  ^^^  acqulttcd  of  the  charge  therein  contained. 

The  prisoner's  main  defence  to  the  whole  information  was 
that  he  was  not  a  clerk  within  the  meaning  of  the  statute,  but 
merely  the  financial  agent  of  E.  Barnett  &  Co. 

There  was  no  written  agreement  between  the  prisoner  and 
his  employers,  and  the  evidence  above  stated  as  to  his  position 
and  duties  was  given  by  Mr.  B.  L.  Barnett. 

During  the  trial,  Mr.  Chubb,  Q.C.,  who  prosecuted  on  behalf 
of  the  Crown,  tendered  as  evidence  in  support  of  the  information  : 
— (1)  a  proof  of  debt  in  the  insolvent  estate  of  J.  M'Alpine, 
sworn  and  made  by  the  prisoner  on  the  21st  May,  1886,  on  behalf 
of  E.  Barnett  &  Co.  ;  (2)  a  proof  of  debt  in  the  insolvent  estate 
of  A.  J.  Bing,  sworn  and  made  by  the  prisoner  on  the  14th  April, 
1886,  on  behalf  of  E.  Barnett  &  Co. ;  and  (3)  a  preliminary  proof 
of  debt  in  proceedings  for  liquidation  by  arrangement  or  com- 
position instituted  by  G.  Chadwick  the  younger,  sworn  and  made 
by  the  prisoner  on  the  26th  July,  1886,  on  behalf  of  E.  Barnett 
&  Co.  In  each  of  these  proofs  of  debt  the  prisoner  deposed 
that  he  was  a  "  clerk  to  E.  Barnett  &  Co."  The  last- mentioned 
proof  related  to  goods  that  had  been  supplied  by  E.  Barnett  & 
Co.  to  the  debtor  between  5th  May  and  26th  June,  1886,  and  to 
promissory  notes  that  had  been  made  by  the  debtor  in  favour 
of  E.  Barnett  &  Co.  between  the  19th  April,  1886,  and  the  14th 
May,  1886.  The  prisoner's  counsel,  Mr.  Power,  objected  to  the 
admission  of  each  of  the  proofs.  I  overruled  his  objection, 
and  admitted  the  three  proofs  in  evidence.  The  proofs  so  admitted 
accompany  this  case. 

Mr.  Power  tendered,  as  evidence  on  behaK  of  the  prisoner, 
a  power  of  attorney  made  by  Mr.  B.  L.  Barnett  on  the  16th 
December,  1886,  in  favour  of  his  brother,  Mr.  E.  M.  Barnett, 
and  the  prisoner.  By  such  power  of  attorney  Mr.  B.  L.  Barnett 
substituted,  with  certain  exceptions,  powers  that  by  an.  earlier 
deed  poll  had  been  conferred  on  him  by  his  partner,  Mr.  Emanuel 
Barnett,  and  conferred  like  powers,  on  his  own  behalf,  on  the 
same  donees.  The  effect  of  the  power  of  attorney  was  to  repose 
on  the  prisoner  and  Mr.  E.  M.  Barnett  jointly,  and,  in  the  event  of 
of  the  absence,  illness,  or  incapacity  of  either  of  them,  but  so  long 
only  as  such  absence,  iUness,  or  incapacity  continued,  in  the  other 
solely,  with  specified  reservations,  the  management  and  control 
"  of  the  business  of  E.  Barnett  &  Co.,  during  the  absence  from 
Queensland  of  Mr.  B.  L.  Barnett.  The  power  of  attorney  accom- 
panies this  case.  I  refused  to  admit  it  in  evidence,  on  the  ground 
that  it  was  irrelevant  and  could  not  afiect  the  status  of  the 
-.prisoner  on  the  dates  mentioned  in  the  information. 

In  my  charge  to  the  jury  I  told  them  not  to  regard  the 
proofs  of  debt  that  were  admitted  by  me  as  evidence  of  the 
character  or  capacity  in  which  the  prisoner  was  employed  by 
E.  Barnett  &  Co.,  but  to  treat  them  simply  as  evidence  of  the 
fact  that  the  prisoner  was  in  that  firm's  employment  on  the  dates 
when  the  proofs  were  respectively  made  by  the  prisoner. 


CRIMINAL  REPOETS,  1860-1907.  199 

On  the  conclusion  of  my  charge  to  the  jury,  the  prisoner's         Beqina  v. 
counsel  requested  me  to  reserve  the  following  questions  of  law  ^'^''^ham  Street, 

.  ,,  ^    -J  i-  St    J.T   ■       ri  1.  THE  YOnNQER. 

tor  the  consideration  of  this  Court : —  

(1)  Was  the  proof  of  debt,  dated  the  26th  July,  1886,  properly 

received  in  evidence  ? 

(2)  Was  the  power  of  attorney  of  the  16th  December,  1886, 

properly  rejected  ? 
I  did  not  pass  judgment  on  the  prisoner,  but  postponed  such 
judgment  until  the  questions  reserved  had  been  decided  by  this 
Court,  and  I  committed  the  prisoner  to  prison,  and  he  now  is  in 
prison. 

Charles'  Stttaet  Mbin,  J. 
2nd  June,  1888. 

Power  and  lAlley  appeared  for  the  prisoner  ;  Chubb  Q.G.  and 
Beat  for  the  Crown. 

Power  :  The  issue  was — ^Was  the  prisoner  a  clerk  on  the  date 
of  the  alleged  embezzlement  ?  Was  he  a  clerk  on  12th  July  ? 
There  should  be  no  presumption  in  a  criminal  case.  There  was 
no  objection  to  the  two  first  proofs  of  debt  that  were  put  in  evi- 
dence ;  but  the  third  was  remote,  and  the  conviction  therefore 
bad.     R.  V.  Gibson,  18  Q.B.D.  87,  R.  v.  Fairie,  8  E.  &  B.  486. 

LiLLEY  C.J.  :  There  is  a  chain  of  proofs  beginning  in  April,  one 
in  May,  and  one  in  July.  The  two  first  lead  up  to  the  third  ; 
as  Unks  in  the  chain  of  proofs  none  of  them  is  remote.  We  are 
unanimous  against  you  on  that  point. 

Power  :  As  to  the  power  of  attorney  of  December,  1886,  the 
Crown  pressed  their  objection  to  its  admission,  and  His  Honour 
rejected  it.  If  the  document  of  26th  July  was  admissible,  that 
one  of  December  should  also  have  been.  There  was  some  evi- 
dence that  prisoner  was  probably  a  financial  agent,  with  more 
power  than  a  clerk.  It  is  no  doubt  a  question  of  degree  of 
remoteness. 

LiLLEY  C.J.  :  We  do  not  think  the  power  of  attorney  was 
admissible  ;    or  that  it  would  have  served  you,  if  admitted. 

lAlley  followed.  The  Crown  asserted  that  on  15th  March 
prisoner  was  a  clerk,  again  on  3rd  June,  and  again  on  12th  July. 
By  way  of  showing  that  he  was  a  clerk  on  12th  July,  they  put  in 
a  proof  of  debt  sworn  some  days  after  that  date  in  which  h© 
admitted  that  he  was  a  clerk.  There  was  nothing  in  that  proof 
to  show  that  he  knew  anything  of  previous  transactions  ;  there 
was  nothing  in  The  Insolvency  Act  requiring  him  to  know  th© 
business  of  the  firm. 


200  QUEENSLAND   JUSTICE   OF  THE   PEACE. 

Eegina  v.  Mbin  J.  :   Then  how  does  a  man  swear  that  another  is  indebted 

^;rZ';ar''  to  the  erm  of  which  he  is  an  employ^  ? 

Lilley  :  If  he  could  not  do  so,  no  more  could  an  executor  swear 
to  the  business  of  a  testator  who  had  carried  on  that  business 
himself. 

Lilley  C.J.  :  The  executor  would  make  his  affidavit  in  proper 
form,  no  doubt.  The  Insolvency  Act  does  not  allow  a  man  to 
swear  a  proof  of  debt  as  of  his  own  knowledge,  when  he  actually 
does  not  know,  but  is  merely  informed.  If  prisoner  swore  falsely 
in  this  case,  the  affidavit  may  be  bad  under  the  Insolvency  Act ; 
still  it  is  admissible  evidence  per  se  in  this  trial. 

Chubb  Q.C.  and  Real  were  not  called  upon. 

Lilley  C.J.  LiLLEY  C.J.  :    The  two  points  reserved  for  the  prisoner  have 

been  put  strongly  by  Mr.  Power  and  Mr.  Lilley.     In  this    ease, 
1st,  was  the  proof  of  debt  dated  26th  July,  1886,  properly  received 
in  evidence  ?     That  one  only  is  assailed.     In  order  to  see  whether 
it  was  properly  received  in  evidence,  there  are  two  Hues  of  circum- 
stances, either  of  which,  to  my  mind,  would  determine  the  ad- 
missibility  of   the   document.     The   first  is  that  between  15th 
April  and  26th  July  there  were  a  series  of  proofs,  so  to  speak,  in 
which  the  defendant  swore  that  he  was  a  clerk  to  Barnett  &  Co. 
Now  the  embezzlements  were  charged  as  having  taken  place  on 
15th  March,  3rd  June,  and  12th  July.     The  only  one  of  those 
dates  not  within  the  period  covered  by  these  proofs,  is  that  of 
15th  March,  and  that  is  before.     With  respect  to  the  others,  we 
may  presume  that  defendant  had  continued  to  be  a  clerk  during 
that  period  ;    and  with  respect  to  15th  March,  we  may  presume 
that  he  was  a  clerk  before,  and  continued  to  be  a  clerk  after  that 
date,  since  he  swears  that  transactions  of  the  firm  in  December, 
1885,  were  within  his  own  knowledge.     The  proof  of  14th  April 
contains  the  statement  that  the  facts  were  within  his  own  know- 
ledge, and,  notwithstanding  that  that  averment  is  not  in  the  proof 
of  26th  July,  yet,  when  a  man  swears  to  another's  affairs,  we  may 
take  it  that  they  are  within  his  own  knowledge.     We  must  take 
it  that  between  these  extreme  dates  of  dishonest  transactions, 
the  defendant  may  be  reasonably  believed  on  his  own  oath  to 
have  been  a  clerk.     I  think  that  averments  made  by  a  man  at 
not  too  remote  a  period  from  the  date  of  the  transactions  im- 
peached may  be  given  in  evidence  against  him.     The  question 
of  remoteness  is  a  subject  for  the  judge,  and  he  must  consider  it. 
I  must  take  it  that  no  such  objection  was  raised  here,  and  that, 


CRIMINAL  REPOETS,  1860-1907.  201 

if  it  had  been,  my  learned  brother  should  have  overruled  it,    .     Reqina  v. 
,  ''  Abraham  Street, 

because  here  the  proofs  are  made  at  periods  not  too  remote  from      thk  younoer. 

the  transactions  which  took  place  before   15th  March,   or  just  ..     ~  , 

immediately  before  12th  July.  On  the  ground  that  the  extreme 
dates  were  not  too  remote  either  way,  I  must  hold  that  the 
evidence  was  admissible. 

From  every  point  of  view,  there  was  a  chain  of  circumstances 
deposed  to  by  prisoner  in  these  proofs  which  would  strengthen 
the  presumption  of  continuance,  that  is,  that  he  was  a  clerk 
during  the  whole  of  the  period  sworn  to  in  these  proofs.  In  the 
first  of  them,  that  of  21st  May,  the  prisoner  Street  swore  that 
M' Alpine  was  indebted  to  Barnett  &  Co.  in  £26  odd,  and  that 
Barnett  &  Co.  held  securities  for  that,  one  dated  so  far  back  as 
1st  December,  1885,  and  the  other  being  after  March,  1886,  and 
that  the  debt  was  incurred,  and  for  the  considerations  above 
stated,  within  his  own  knowledge.  Then  there  is  a  subsequent 
proof  of  14th  April,  in  which  he  goes  further  back  still,  and  swears 
in  1886  that  a  man  named  Bing  was  indebted  to  Barnett  &  Co., 
to  his  own  knowledge,  so  far  back  as  1st  October,  1885.  Then 
comes  the  proof  of  26th  July,  on  which  the  question  of  admis- 
sibility has  been  alone  raised,  and  in  which  he  says  that  he  is  a 
clerk  as  in  the  other  proofs,  and  that  George  Chadwick  is  indebted 
to  Barnett  &  Co.  in  £317.  I  think  that,  when  a  man  swears  to 
that,  he  swears  from  knowledge  ;  it  is  not  a  proof  from  informa- 
tion and  belief,  but  by  one  who  knows.  He  may  do  so  as  one 
engaged  in  the  business  from  day  to  day.  In  that,  he  goes  back  as 
far  as  19th  April,  setting  out  various  securities,  and  the  particulars 
of  debts.  That  proof  is  admissible  on  two  grounds,  first,  that  it 
is  not  too  remote  from  the  other  transactions,  and  second,  that 
he  deposes  that  he  is  a  clerk.  That  status  may  most  reasonably 
be  presumed  to  have  continued  from  15th  March  to  12th  July. 
Then  this  proof  was  rightly  admitted.  Founded  on  the  previous 
proofs,  it  is  the  concluding  link  in  a  chain,  of  which  the  two  pre- 
vious proofs  are  links,  and  concludes  the  previous  presumption, 
which  the  jury  may  take  for  a  fact,  that  he  was  a  clerk  during  the 
whole  period  of  the  information,  before  and  after  those  three 
dates,  when  he  is  alleged  to  have  appropriated  his  master's  money. 
My  learned  brothers  agree  with  me  that  the  convictions  must  be 
upheld. 

HARDi2fG  J.  :    The   prisoner  was  indicted   for  embezzlement,        Harding  J. 
and,  in  cases  of  this  crime,  the  law  allows  three  separate  charges 
to  be  proceeded  upon  one  information,  so  that  there  were  at  this 


202 


QUEENSLAND  JUSTICE   OF  THE  PEACE. 


Eegina  v. 

Aebahaiu  Stbket, 

tbe  yobkgeb. 

Harding  J. 


time  before  the  jury  the  charge  of  embezzlement  on  15th  March, 
3rd  June,  and  12th  July.  As  to  each  of  these  charges  the  evi- 
dence must  be  sufficient  to  convict  the  prisoner.  The  charge 
being  for  embezzlement,  one  of  the  issues  must  be,  and  was, 
whether  at  the  time  of  the  offences  charged  to  have  been  com- 
mitted, the  defendant  vi^as  a  clerk  to  the  owner  of  the  property 
said  to  have  been  embezzled  ?  This  was  in  issue.  Secondly,  the 
prisoner  raised  the  issue,  that,  if  it  was  proved  at  any  particular 
moment  that  the  relation  of  clerkship  existed,  yet  directly  after- 
wards it  had  ceased  to  go  on.  In  the  course  of  the  trial  two  docu- 
ments were  tendered,  one  of  21st  May,  the  other  dated  14th  April, 
Now,  these  two  documents  were  clearly  admissible,  without 
anything  as  to  their  contents,  as  to  the  embezzlements  charged 
to  have  taken  place  on  3rd  June,  and  12th  July.  They  were 
admissions  of  his  status  at  the  time  just  before  those  embezzle- 
ments. These  were  put  in  and  contained  on  the  face  of  them 
admissions  by  the  prisoner,  on  the  dates  they  were  sworn,  that 
he  was  a  clerk — that  that  relation  existed  between  him  a^d  the 
parties  from  whom  the  money  was  embezzled.  Now,  the  first 
one,  that  of  21st  May,  being  put  in,  it  constituted  the  relationship, 
and  from  that  a  presumption  arose  that  that  relationship  con- 
tinued, until  it  was  rebutted,  and  it  at  once  threw  the  onus  on 
the  prisoner  of  rebutting  that  presumption.  Then,  the  one  of 
14th  April  was  put  in,  and  it  shows  an  admission  of  the  relation- 
ship then,  and  raises  a  presumption  that  it  existed  and  continued 
to  exist.  That  one  of  14th  April  strengthens  the  one  of  21st  May. 
So  far,  then,  we  have  a  relationship  proved  to  exist  on  21st  May 
and  14th  April.  Another  document  is  then  tendered,  dated  26th 
July.  But  it  must  be  remembered  that  the  issue  was  that  this 
relationship  was  presumed  to  continue  until  shown  to  have  been 
put  an  end  to.  It  is  a  contention  in  issue  that  he  was  a  clerk, 
and,  this  being  put  in,  it  goes  to  strengthen  the  presumption  that 
the  relationship  continued  right  through.  On  that  ground  alone 
I  think  it  was  receivable.  That  would  go  only  as  to  the  acts 
charged  on  3rd  June  and  12th  July.  So  far  as  that  goes,  I  do  not 
think  there  can  be  the  least  possible  doubt  as  to  its  admissibiUty, 
nor  am  I  going  to  throw  any  doubt  on  it,  because  they  were  rightly 
admitted.  In  these  documents,  the  deponent  acknowledged 
himself  at  the  time  to  be  a  clerk.  He  speaks  of  his  own 
knowledge,  because  a  man  making  an  affidavit  always 
speaks  of  his  own  knowledge,  unless  he  qualifies  it  by 
showing    the    sources    of    his    information.       He    omits    here 


OEIMINAL  EEPOETS,   1860—1907.  203 

to    give    any    sources    of    information,    and    does    it     at    his    .    Begina  v. 

.,  .  ,  1     ,         n  ,.        Abraham  Street, 

peril,    ana    it    would    be    for    a  jury,    on    an   indictment    for      the  YonNOER. 

perjury,  to  say  whether  he  did  so  wilfully.     But  here,  speaking       ^  ^^  j 

without  quaHfication,  he  asserts  that  he  knows  the  facts  stated 

therein.     If  he  did,  these  dates  run  back  behind  15th  March,  and 

running  back  as  they  did,  it  was  a  question  for  the  jury  to  say  : 

Do  we  beheve  what  this  man  then  swore  on  his  oath  ;    that  he 

knew  in  connection  with  Barnett's  business  these  facts  stated  ? 

If  not,  we  must  believe  that  he  was  intentionally  swearing  falsely. 

That  was  a  question  for  the  jury,   whether  or  not  they  gave 

credence  to  what  was  laid  before  them.     If  they  did,  why,  from 

that,  though  not  direct  evidence,  it  was  a  circumstance  from 

which  they  were  entitled  to  infer  that  he  was  a  clerk  during  that 

period.     So  that  I  think  the  documents  were  properly  before  the 

jury  as  to  each  charge  of  embezzlement  then  being  tried.     Then 

it  was  said  that  a  document  tendered  by  Mr.  Power,  on  behalf  of 

the  prisoner,  was  improperly  rejected.     This  document  was  dated 

16th    December,    1886.     As    compared   with    the    dates    of    the 

embezzlements   charged,   I   think  that   document   was   properly 

rejected.     I  need  not  give  further  grounds  for  my  judgment. 

Mein  J.  :    I  concur.  Mein  J. 

LiLLEY  C.J.  :    Our  answer,  then,  to  the  first  question  is.  Yes  ;        LiUey  C.J. 
and  to  the  second.  Yes.     The  convictions  are  affirmed,  and  the 
prisoner  is  ordered  to  be  brought  up  for  sentence  before  our  brother 
Mein  on  Wednesday  morning. 

Solicitors  for  prisoner  :    Chambers,  Bruce  &  McNah. 

Solicitor  for  prosecution  :    Crown  Solicitor. 


[ToowooMBA  Circuit  Coitrt,  Criminal.] 

REGINA  V.  KNACK. 

[3  Q.Ii.J.  101. — Note. — See  sec.  572  of  Criminal  Code  as  to  amendment  of  Indict- 
ment.] 

Information  for  infanticide — Two  counts — Information  quashed —  1888. 

Second    information — Sex    of    child   unspecified — Information  nth  July, 

quashed — Third  information — Amendment  of  amended  inform-  Harding  J. 
ation. 

Chubb  Q.C.,  for  Crown,  presented  an  information  against  Ellen 


204  QUEENSLAND  JUSTICE   OF  THE    PEACE. 

Heoika  u.  Knack.  Knack,  containing  two  counts,  (1)  that  she  had  murdered  a  male 
child,  (2)  that  she  had  murdered  a  female  child. 

Macnaughton,  for  prisoner,  objected  to  double  count. 

Harding  J.  ordered  the  information  to  be  quashed.  Archbold, 
19th  Ed.,  49. 

Chubb  Q.C.  then  presented  an  information  against  the  prisoner 
for  the  murder  of  a  child,  name  unknown. 

Macnaughton  objected  to  the  information,  on  the  ground  that 
the  sex  of  the  child  should  be  stated  ;  and,  if  that  objection  be 
overruled,  on  the  ground  that  there  should  be  some  allegation  in 
the  information  that  the  sex  was  unknown  to  the  Prosecutor. 

Hakding  J.  intimated  that  he  did  not  consider  mention  of  the 
sex  absolutely  necessary,  if  unknown. 

The  information  was  quashed  on  Chubb  consenting  to  Mac- 
naughton's  application. 

Chubb  Q.C.  then  presented  an  information  for  the  murder  of  a 
female  child,  name  unknown. 

Macnaughton  objected  on  the  ground  that  the  Court  had  no 
power  to  amend  an  amendment.     Archbold,  19th  Ed.,  225. 

This   objection   being   overruled,     the   trial  proceeded  in  the 

usual  course,  and  prisoner  was  acquitted. 
< 

Solicitor  for  prisoner  :    Murray,  Toowoomba. 


[Brisbane  Criminal  Sittings.] 
REGINA  V.  ROCHE. 
[3  Q.L.J.  139.— Note.— See  sec.  613  ol  Criminal  Code,  and  see  B.  v.  Kovalky,  6 

Q.L.J.  219,  post.] 

1889.  Practice — Plea — Allegation    of    insanity — Jury    sworn    to    try   the 

a7th,  asth  May.  same — Right  to  begin — Insanity  Act,  s.  48. 

Harding  J.  A  prisoner  committed  for  sentence  from  Inferior  Court,  allowed  to  withdraw 

plea  of  guilty,  on  his  counsel  alleging  insanity,  and  on  the  plea  of  not  guilty  being 
entered  a  jury  sworn  to  state  whether  prisoner  understood  proceedings  of  the  Court. 

On  the  finding  of  the  jury  that  the  prisoner  did  comprehend  the  proceedings 
and  was  sane,  it  was  ordere'd  that  the  plea  of  not  guilty  be  withdrawn  and  that 
a  plea  of  guilty  be  entered  instead. 

Hdd,  the  right  to  begin  is  with  the  prisoner,  on  whom  the  onus  to  prove  insanity 
lies. 

Segiiia  v.  Davies,  3  C.  and  Kir.,  329,  not  followed. 

Regina  v.  Turton,  6  Cox  C.C.  385,  followed. 


CRIMINAL  REPOETS,  1860—1907.  205 

Information  against  John  Roche  for  larceny.     The  prisoner  Kbginaj^Boohb. 
was  committed  for  sentence  from  the  Police  Court. 

Wilson,  for  prisoner,  asked  to  have  the  plea  in  the  inferior 
Court  withdrawn  and  made  a  statement,  alleging  insanity  on  the 
part  of  the  prisoner  at  the  time  of  arraignment. 

Mansfield,  for  the  Crown,  submitted  that  unless  it  could  be 
shown  that  the  prisoner  was  insane  at  the  Police  Court, 
when  he  made  his  plea  of  guilty,  it  would  be  of  no  avail. 

Wilson  :  If  it  is  shown  that  a  prisoner  is  of  unsound  mind,  all 
proceedings  can  be  stayed  at  any  time. 

Harding  J. :   Well,  then,  he  goes  to  prison  for  ever  ? 

Wilson  :    No,  he  is  confined  during  the  Queen's  pleasure. 

Mansfield  then  tendered  the  depositions,  and  the  plea  of  guilty 
entered  in  the   Police  Court. 

Wilson  :  The  difficulty  in  this  matter  arises  out  of  the  fact 
that  such  cases  are  not  provided  for  in  the  new  Act.  If  at  any 
time  it  comes  to  the  cognizance  of  the  Court  that  the  prisoner  is 
insane,  aU.  proceedings  must  be  stayed. 

Harding  J.  :  It  will  be  for  the  jury  to  say  whether  he  was 
insane  at  the  PoHce  Court,  and  whether  he  is  insane  now. 

Wilson  :  Such  a  proceeding  is  not  provided  for  in  The  Insanity 
Act  of  1884,  which  repealed  the  old  Act  of  George  III,  and  it  is  a 
question  now,  whether  a  jury  can  be  summoned  to  try  the  question. 
The  difficulty  arises  in  this  case  from  the  committal  of  the  prisoner 
for  sentence. 

Harding  J.  :  There  is  no  difficulty  about  that.  I  cause  the 
prisoner  to  be  re-arraigned.  The  man  has  pleaded  guilty,  which 
is  simple  enough,  and  you  assure  me  that  you  have  evidence  of 
the  man's  insanity. 

Wilson  :   And  I  submit  that  the  proceedings  must  be  stayed. 

Harding  J.  :  The  proper  course  wiU  be  for  Mr.  Wilson  to  ask 
for  the  prisoner's  plea  to  be  withdrawn.  If  I  accede  to  that,  I 
will  have  a  jury  empanelled  to  try  the  question,  whether  or  not 
the  prisoner  can  understand  the  proceedings  and  plead  to  the 
information.  This  is  the  course  I  took  at  Maryborough,  in 
Regina  v.  Jansen,  about  1880,  before  the  new  Insanity  Act  came 
into  force,  and  I  do  not  see  how  that  Act  affects  what  I  did  on 
that  occasion.  The  only  difference  is,  that  the  old  Insanity  Act 
was  in  force  then,  and  the  present  Act  operates  now.     The  real 


206  QUEENSLAND  JUSTICE   OF  THE    PEACE. 

Begina  v.  Eoche.  question  is  whether  the  prisoner  is  in  a  state  of  mind  to  under- 
stand what  we  are  doing.  If  he  is  not,  we  must  wait  till  he  is, 
subject  to  Her  Majesty's  pleasure. 

Wilson  then  asked  that  the  prisoner's  plea  of  guilty  should  he 
withdrawn,  and  on  the  concurrence  of  the  Crown,  the  request  was 
acceded  to.  The  prisoner  was  then  remanded  till  the  next  day,  in 
order  to  allow  the  Crown  to  inquire  into  his  mental  condition. 
On  the  following  day  the  prisoner  was  arraigned  and  pleaded  not 
guilty.  A  jury  was  then  empanelled,  the  following  oath  (Arch- 
bold,  19th  Ed.,  p.  153)  being  administered  : 

You  shall  well  and  truly  try  whether  John  Roche,  the  prisoner 
at  the  Bar,  who  stands  charged  with  felony  was  able,  competent, 
and  of  sufiBcient  intellect  to  understand  and  comprehend  the 
proceedings  on  the  trial  when  he  pleaded  to  the  information 
after  referred  to,  and  whether  he  is  now  able,  competent,  and  of 
suflBcient  intellect  to  understand  and  comprehend  the  proceedings 
on  the  trial  to  be  now  had  and  taken  on  the  information  preferred 
against  him  for  the  said  felony,  and  upon  which  he  hath  been 
now  arraigned  and  pleaded  not  guilty,  so  as  to  make  a  proper 
defence  thereto.     So  help  you  God. 

And  the  following  oath  was  administered  to  the  witnesses  : — 

The  evidence  which  you  shall  give  to  the  Court  and  jury  upon 
this  inquiry,  shall  be  the  truth,  the  whole  truth,  and  nothing  but 
the  truth.     So  help  you  God. 

The  usual  proclamation  as  to  witnesses,  except  one  medical 
witness  on  each  side,  was  then  made. 

Haeding  J.  then  called  on  Wilson  to  begin. 

Wilson  :  I  have  no  objection  to  begin,  but  there  is  a  different 
practice  that  was  followed  in  Eegina  v.  Dames  (3  C.  &  Kir.,  329). 

Habding  J.  :  That  case  has  not  been  followed.  1  Russell  on 
Crimes,  135-6  ;  Eegina  v.  Turton  (6  Cox  C.C,  385).  A  man  is 
presumed  to  be  sane  until  the  contrary  is  proved,  and  the  burden 
of  proof  falls  on  the  prisoner  now,  though  it  may  shift  as  the  case 
goes  on. 

Wilson,  in  opening,  referred  to  1  Russell  on  Crimes  114  ;  Begina 
V.  Oxford,  9  C.  &  P.,  546  ;  and  as  to  admissions  or  statements, 
Eegina  v.  Pearce,  9  C.  &  P.  670.  Medical  and  other  evidence 
was  then  called,  and  counsel  addressed  the  jury. 

The  jury  found  that  the  prisoner  was  able  to  comprehend  the 
proceedings  on  the  trial  when  he  pleaded  to  the  information,  and 
(2)  that  he  was  now  capable  of  understanding  the  proceedings. 


CRIMINAL  REPORTS,   1860—1907.  207 

Mansfield  thereupon  applied  that  the  plea;  of  not  guilty  be  Begina  v.  Boche. 
struck  out,  and  the  plea  of  guilty  entered. 
Harding  J.  :    Be  it  so. 
Mansfield  prays  judgment. 

Wilson  did  not  desire  to  press  the  question  of  aanity  any  further, 
but  asked  for  mercy  on  the  ground  of  previous  good  character. 
The  prisoner .  was  then  sentenced. 

SoUcitors  for  prisoner  :    Chambers,  Bruce,  and  McNab. 
Solicitor  for  Crown :    J.  Howard  Gill. 


[Full  Court.] 
REG.  V.  RODY  HOGAN. 


[3  Q.L.J.  143.— Note.— See  R.  v.  Kuruwaru,  10  Q.L.J.  139,  post ;  R.  v.  Corbett, 
1903  S.R.Q.  246,  post ;  R.  v.  Warton,  1905  S.R.Q.  167,  post.  As  to  improper 
admission  of  evidence  for  defence,  see  now  s.  671  of  Criminal  Code.] 

Dying  declaration — Authenticity  of,  without  declarant's  signature —  1889. 

Absence  of  prisoner  while  declaration  was  being  made.  June. 

A  dying  declaration  is  admissible  if  its  terms  can  be  proved  by  a  witness  who 
was  present  when  it  was  made,  and  such  declaration  does  not  require  to  be  signed 
or  authenticated  in  any  other  way. 

Special  Case  stated  by  Mr.  Justice  Cooper  :  — 

Judge's  Chambers, 

Supreme  Court,   Bowen, 

May  23rd,  1889. 
Reg.  v.  Rody  Hogan. 

The  above-named  prisoner  was  tried  before  me  at  Towns- 
ville,  on  the  2nd  and  3rd  of  May  instant,  on  the  charge  of  having 
murdered  a  man  named  William  GuUfoyle.  A  material  part  of 
the  evidence  against  Hogan,  was  Guilfoyle's  dying  declaration, 
which  had  been  taken  down  in  writing  by  Mr.  ZiMman,  the  Police 
Magistrate  of  Herberton.  It  began  with  the  words,  "  I,  William 
Guilfoyle,  believing  that  I  am  in  danger  of  impending  death,  and 
that  I  have  no  hope  of  recovery,  do  solemnly  and  sincerely 
declare,"  and  proceeded  to  relate  the  circumstances  of  the  crime. 
At  the  end  were  inscribed  these  words  and  figures,  "  Declared 
before  me  this  fourth  day  of  November,  1888,  at  Herberton,  A.  H. 
Zillman,  Police  Magistrate."  The  document  was  not  signed  or 
otherwise  marked  in  any  way  by  the  declarant. 

William  David  Bowkett,  a  duly  qualified  medical  practitioner 
of  Herberton,  was  examined,  and  in  the  course  of  his  evidence 


208  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

Beg.  !■.  EoDTT      said,  "  I  was  present  on  the  4th  November,  when  GuiKoyle  made 
^^^-  a  dying  declaration.     Mr.   Zillman,  Police  Magistrate,  and  Mr. 

Ringrose,  barrister,  were  there  at  the  time,  and,  for  a  portion  of  the 
time.  Constable  Lanigan  and  prisoner.  The  declaration  was  taken 
down  in  writing.  It  was  read  over  to  Guilfoyle.  While  Guilfoyle 
was  making  his  declaration  the  prisoner  was  brought  into  Guil- 
foyle's  presence,  and  Guilfoyle  was  asked  whether  that  was  the 
man,  or  whether  that  was  Rody  Hogan  (I  can't  remember  which), 
and  he  said,  '  Yes.'  GuiKoyle  was  suffering  a  good  deal  of  pain. 
His  mind  was  clear."  The  witness  then  looked  at  a  document  and 
said,  "  This  is  the  declarationi" 

Mr.  Macnaughton,  of  the  bar,  who  defended  the  prisoner, 
objected  to  its  reception,  on  the  ground  that  the  prisoner  was  not 
present  all  the  time. 

I  overruled  the  objection. 

The  witness  continued,  "  I  had  no  hope  of  Guilfoyle's  recovery 
and  I  told  him  so." 

The  document  was  then  tendered ;  no  further  objection  was 
taken  ;  it  was  admitted  and  read.  No  further  evidence  was 
given  upon  the  point  under  consideration. 

After  the  jury  had  retired,  Mr.  Macnaughton  asked  me  to 
reserve  a  case  for  the  consideration  of  the  Pull  Court,  on  the 
ground  that  the  declaration  made  by  Guilfoyle,  was  not  signed 
or  authenticated  on  the  face  of  it  by  him,  and  was  consequently 
not  receivable  in  evidence,  and  ought  not  to  have  been  left  to  the 
jury.     He  cited  Begina  v.  Gibson,  18  Q.B.D.,  537. 

The  jury  convicted  the  prisoner,  and  I  passed  sentence  of 
death  upon  him.  I  respited  the  execution  of  the  sentence  until 
after  the  decision  of  the  Full  Court  upon  the  point  reserved 
should  be  known. 

Pope  A.  Coopek. 

Power,  for  the  Crown,  submitted  that  the  objection  should  be 
overruled.  This  case  was  similar  to  King  v.  Reason  cfc  Nantes, 
1  Str.,  499. 

Lilley  C.J.  LiLLEY  C.J.  :   I  see  now  why  Reg.  v.  Gibson  is  mentioned  here. 

Under  that  case,  now,  the  prisoner's  counsel  may  wish  to  have 
certain  evidence  in  for  the  sake  of  his  client,  and  afterwards  should 
it  turn  out  to  be  inimical,  the  Judge  would  have  to  reject  it, 
because  it  should  not  have  been  admitted.  I  very  much  regret 
that  that  decision  has  been  given.  We  are  bound  by  it ;  and  under 
it  we  must  now  treat  this  matter,  as  if  counsel  had  been  present 
and  had  objected.  A  prisoner  now  only  needs  the  luck  to  get  a 
bit  of  evidence  in,  that  the  Judge  should  not  have  allowed  in 
against  him,  even  if  ehcited  by  his  own  counsel,  and  he  is  as  if  it 
had  been  objected  to  by  counsel  and  put  to  the  jury. 

The  document  here  was  not  a  deposition  ;  we  can  only  treat 
it  as  a  dying  declaration.     It  had  to  be  proved  by  someone  who 


CRIMINAL  EEPORTS,   1860—1907.  209 

heard  it  taken.     Here  the  doctor  does  that.     There  is  nothing        ^Hooan°"^ 

in  the  point  that  the  prisoner  was  not  present ;    nor  in  the  point  

that  it  was  not  signed  by  the  declarant.     The  terms  of  the  declara-  i  ey    .  . 

tion  are  clearly  proved  by  the  witness,  who  says  he  was  present. 

There  is  nothing  here,  as  far  as   I  can  see,  that  might  not  have 

been  admitted.    As  the  terms  of  the  declaration  were  proved  by  a 

witness  present  when  it  was  made,  I  think  it  was  clearly  admissible, 

and  need  not  have  been  signed,  or  authenticated  in  any  other 

way.     The  man  may  not  have  been  in  such  a  condition  as  to  have 

borne   to  have  his  deposition   taken.     These  things  are  usually 

done  in  a  hurry.     Had  it  been  possible,  the  prisoner  being  there, 

it  would  have  been   better   to   have   taken   a   deposition.     The 

conviction   must   be  affirmed. 

Solicitor  for  Crown  :    Gill,  Crown  Solicitor,  for  Petrie,  Crown 
Solicitor,  Bowen. 


[Full  Court.] 
BERNECKER  v.  WHITE. 


[4  Q.L.J.  1.— Note.— Brands  Act  of  1872,  s.  27,  is  repealed,  see  now  s.  447  ol  Criminal 
Code.  Brands  Act  Amendment  Act  of  1884,  s.  2,  Is  repealed,  see  now  s.  449 
of  Criminal  Code.] 

Brands  Act  of  1872,  s.  27,    and  Brands  Act  Amendment  Act  of  1890. 

1884,  s.  2 — Limitation  of  time  for  information  after  discovery  March. 

of  offence — Costs  to  the  Crown.  LilUy  G.J. 

Mein  J. 
B.  was  convicted  under  the  above  statutes  of  illegally  branding  a  cow,  upon 

an  information  laid  by  the  Inspector  of  Brands,  more  than  a  month  after  the 

discovery  of  the  branding  by  the  owner  W.,  but  within  a  month  of  the  time  when 

W.  informed  the  inspector  thereof. 

Held,  that  the  limitation  of  time  in  s.  2  of  BruTids  Act  Amendment  Act  of  1884 
relates  to  the  discovery  of  the  offence  by  the  person  laying  the  information,  and 
not  to  any  person  who  may  first  make  the  discovery,  and  neglect  to  lay  an  infor- 
mation. 

The  Crown,  having  appeared  and  succeeded  on  behalf  of  the  Inspector  for 
Brands,  are  entitled  to  coats. 

Bebneckeb  had  been  convicted  under  the  Brands  Act  of  1872, 
s.  27,  of  illegally  branding  a  cow,  the  property  of  White,  by 
putting  his  own  unregistered  brand  on  it.  The  alleged  illegal 
branding  was  said  to  have  been  in  June,  1889.     White  informed 


210  QUEENSLAND  JUSTICE   OF  THE   PEACE. 

Berneckee  !'.      Ferry,   the   Inspector   of    Brands,    and   prosecuted   on  the   2nd 

'  December,  1889,  and  Ferry,  after  inspection  of  the  cow,  laid  an 

information  on  13th  December,  1889.  White  had  heard,  about 
six  months  before  2nd  December,  1889,  that  his  cow  bore  defend- 
ant's brand. 

Rutledge,  for  the  defendant,  appealed  and  obtained,  before 
Mein  J.,  at  Chambers,  a  rule  nisi  for  a  quashing  order  against 
White  and  the  convicting  justices,  on  the  ground  that  the  breach 
of  the  provision  of  s.  27  of  the  Brands  Act  of  1872,  complained  of, 
was  discovered  more  than  one  month  before  the  information  was 
laid  ;    the  rule  asked  for  costs  against  White. 

Rutledge  and  Lilley  now  appeared  for  the  appellant,  and  moved 
the  rule  absolute  on  the  same  ground.  White  was  the  person 
who  should  have  laid  the  information.  White  put  the  law  in 
motion,  and  got  the  Inspector  to  lay  the  information.  White 
had  made  a  discovery  of  the  breach  of  the  law  six  months  before. 
Referred  to  Metropolis  Local  Management  Amendment  Act, 
25,  26  Vic,  c.  102,  s.  107,  as  an  analogous  Act ;  and  to  Brutton  v. 
St.  George's  Vestry,  13  Eq.,  339. 

Lilley  C.J.  :  Can  there  be  any  reasonable  doubt  about  the 
language  of  the  section  ;  discovery  is  when  a  man  has  reasonable 
ground  to  beHeve  that  an  offence  has  been  committed.  Here 
it  is  the  discovery  by  the  person  who  prosecutes,  that  is  meant. 

Real :  The  discovery  by  the  -  Inspector  was  on  the  day  that 
White  informed  him  ;  he  went  and  inspected  the  beast,  and  within 
a  month  laid  the  information.     The  rule  should  be  discharged. 

Lilley  C.J.  LiLLBY  C.J.  :  This  was  a  prosecution  by  the  Inspector  of  Brands, 

— a  public  officer  charged  with  the  administration  of  the  Brands 
Act,  which  is  an  Act  of  public  policy,  and  for  the  protection  of" 
the  public.  One  object  of  the  statute  is  to  prevent  the  commission 
of  felonies,  and  other  offences  against  persons  owning  stock. 
There  was  a  public  officer  prosecuting, — Mr.  Ferry — on  the 
information  given  him  by  Mr.  White,  who  alleged  that  his  cow 
— or  calf  at  the  time  probably,  when  the  brand  was  put  on — 
had  been  wilfully  branded  by  the  defendant,  Bernecker.  Our 
judgment  must  rest  upon  the  interpretation  which  we  put  upon 
the  Brands  Act  Amendment  Act  of  1884.  The  prosecution  origin- 
ated under  the  27th  section  of  the  principal  Act  of  1872,  which 
provides  that, — 

"if  any  person  wilfully  brand  any  stock  of  which  he  is  not  the 
rightful  owner,  or  shall  wilfully  cause,  direct,  or  permit  any  stock 


CEIMINAL   REPORTS,   1860-1907.  211 

of  which  he  is  not  the  owner,  to  be  branded  with  his  brand,  such      BiinNECKER  v. 
person  shall  on  conviction  for  every  such  offence  in  a  summary  ^hite. 

way,  forfeit,  and  pay  any  sum  not  exceeding  fifty  pounds."  Lilley  C.J. 

Well,  as  I  have  said,  our  judgment  must  rest  on  the  interpreta- 
tion which  we  put  on  the  2nd  section  of  the  Amending  Act. 
Originally  the  information  for  a  breach  of  this  statute  must  be 
laid  within  six  months  of  the  commission  of  the  offence.  For  some 
reason  or  other  the  Legislature  saw  fit  to  alter  the  law,  and  they 
enacted  in  this  2nd  section  of  the  Amending  Act,  that — 

"on  information  for  a  breach  of  any  of  the  provisions  of  the  27th 
and  28th  sections  of  the  said  Act,  may  be  laid  and  prosecuted 
in  a  summary  way  at  any  time  within  one  month  from  the  dis- 
covery of  such  breach,  anything  in  any  law  or  statute  to  the 
contrary  notwithstanding." 

Now,  our  interpretation  is  that  discovery  is  made  under  this 
section  when  the  person  who  prosecutes  has  reasonable  ground 
for  beUeving  that  an  offence  has  been  committed.  The  person 
who  prosecuted  here  was  the  Inspector  of  Brands,  a  public  officer 
prosecuting  for  a  public  offence,  who  laid  the  information  within 
one  month  of  the  time  when  he  made  the  discovery,  within  the 
m^eaning  of  the  statute,  as  we  interpret  it.  It  was  not  until 
White,  the  owner,  informed  him — Ferry — that  Bernecker  had 
branded  his  cow,  that  he  can  be  said  to  have  had  reasonable 
ground  for  believing  that  an  offence  had  been  committed.  Prob- 
ably it  might  be  extended  to  the  time  when  he  went  to  satisfy 
himself,  by  inspection  of  the  animal,  that  the  double  brands 
were  on  it — first.  White,  the  owner's  brand,  and  then,  on  the 
same  side,  Bernecker's  brand.  That  being  so,  he  laid  his  infor- 
mation within  the  time  limited  by  the  statute.  First,  then, 
discovery  means  when  the  person  prosecuting  has  reasonable 
grounds  for  beheving  that  an  offence  has  been  committed,  and 
second,  the  limitation  is  against  that  person  and  not  against  the 
actual  owner.  Any  other  interpretation  would  lead  to  this  :-— 
fifty  different  persons  may  have  discovered  this  and  not  prosecuted, 
if  they  chose  to  wink  at  it  and  not  do  their  duty.  We  would  then 
have  to  go  back  to  the  person  who  first  discovered  the  offence, 
and  a  man  might  go  without  punishment.  The  old  limitation 
is  gone,  and  this  goes  back  to  the  old  rule  of  law  with  respect  to 
larcenies,  that  the  ofience  is  not  purged  until  the  offender  is 
convicted  or  acquitted,  unless  he  can  show  that  the  person  who 
laid  the  information  discovered  the  offence  more  than  a  month 
before.     That  being  so,  the  rule  must  be  discharged. 


212  QUEENSLAND    JUSTICE   OF  THE    PEACE. 

^"^  Whit^  "  ^^^^  J-  concurred. 


Mein  J. 


Reed  asked  for  costs.  The  Crown  had  appeared  in  the  interests 
of  the  public  and  succeeded,  and  was  therefore  entitled  to  costs, 

Rutledge :  Costs  were  asked  by  appellant  against  White. 
This  was  a  case  of  first  impression  and  of  pubUc  importance. 
The  Crown  ought  not  to  get  costs. 

1  ey  C.J.  LiLLEY  C.J.  :  My  brother  Mein  has  a  strong  impression  that  the 

Crown  should  not  have  costs.  I  am  inclined  to  disagree  with 
him.  This  is  a  public  officer,  and  the  Crown  comes  here  to  defend 
his  act.  I  think  it  ought  to  go  with  costs.  Rule  discharged  with 
costs. 

Sohcitors  for  appellant :    Ruthning  <fc  Byram. 
Solicitor  for  respondent :    Gill,  Crown  Solicitor. 


1891. 
June, 


[Full  Court.] 
REGINA  V.  LUM  HOOK. 

[4  Q.L.J.  63.— Note.— 29  Vic,  No.  13,  ss.  48,  49  ;  38  Vic,  No.  3,  s.  7 ;  and  53 
Vic,  No.  17,  ss.  4,  11,  17,  have  been  repealed ;  40  Vic,  No.  2,  s.  2,  is 
repealed,  see  now  s.  669  of  Criminal  Code. 

Crown  Case  Reserved — Jurisdiction — Northern  Supreme  Court — 
29  Vic,  No.  13,  ss.  48-49—38  Vic,  No.  3,  s.  7—53  Vic, 
No.  17,  ss.  4,  11,  17 — 40  Vic,  No.  2,  s.  2 — Perjury — Judicial 
proceeding — Small  Debts  Act  (31  Vic,  No.  29) — Non-amend- 
ment of  proceedings. 

The  Full  Court  sitting  at  Brisbane,  is  the  proper  tribunal  for  a  Crown  Case 
Reserved  by  a  Judge  of  the  Northern  Suprerae  Court. 

Section  2  of  40  Vic.,  No.  2  [Criminal  Practice  Amendment  Act  of  1876),  is  not 
impliedly  repealed  by  The  Supreme  Court  Act  of  1889. 

An  action  had  been  commenced  in  the  Small  Debts  Court  at  Cairns,  against 
Lum  Hook  and  Chong  Chow,  trading  together  in  partnership,  for  goods  sold  and 
delivered.  The  plaintiff  abandoned  the  case  against  Chong  Chow,  and  without 
amending  the  proceedings  in  any  way,  evidence  was  taken  for  the  defendant, 
who  in  the  course  of  his  evidence,  committed  the  alleged  perjury.  Judgment  was 
given  for  the  plaintiff  against  Lum  Hook  alone. 

Held,  that  this  was  a  judicial  proceeding,  and  it  was  competent  for  the  Court 
to  proceed  in  the  action  after  the  abandonment  against  one  defendant,  and  that 
the  conviction  for  perjury  should  be  sustained. 

Case  Rbseeved  by  Chubb  J.  : 


CEIMINAL  EEPOETS,    1860-1907.  213 

1.  The  defendant  Lum  Hook  was  tried  before  me  at  the  Circuit         Beoina  v. 
Court  Cairns  on  the  second  day  of  April  1891    on  an  information       Lpm  Hook. 
for  perjury. 

2.  The  perjury  was  charged  in  the  information  to  have  been 
committed  in  the  Court  of  Petty  Sessions  Cairns  in  its  Small 
Debts  Jurisdiction  on  the  trial  of  an  action  in  which  one  Long 
Lee  was  plaintiff  and  the  defendant  and  one  Chong  Chow  were 
defendants. 

3.  The  following  evidence  was  adduced  by  the  Crown  :  The 
plaint  summons  and  particulars  of  demand  in  the  action  were 
for  £27  19s.  9d.  for  goods  sold  and  delivered  by  plaintiff  to  Lum 
Hook  and  Chong  Chow  trading  "  together  in  partnership." — On 
the  hearing  after  the  plaintiff  had  given  his  evidence  and  before 
the  alleged  perjury  was  committed  the  plaintiff  abandoned  the 
case  against  Chong  Chow  whereupon  and  without  having  amended 
the  proceedings  in  any  way  the  Court  proceeded  to  take  evidence 
for  the  defendant.  The  defendant  gave  evidence  and  in  the 
course  of  it  made  the  statements  upon  which  the  perjury  was 
assigned  and  judgment  was  given  for  the  plaintiff  against  the 
defendant  alone  for  the  amount  sued  for. 

4.  Upon  this  evidence  I  reserved  for  the  consideration  of  this 
Honorable  Court  two  questions   viz.  : — 

(a)  AVhether    after    the    plaintiff    had   abandoned   the    case 

against   Chong  Chow  the  action  was  as  regarded  the 
defendant  a  judicial  proceeding. 

(b)  Whether  after  such  abandonment  it  was  competent  for 

the  Court  to  proceed  further  in  the  action  against  the 
defendant    alone. 

5.  I  refer  the  Court  to  sections  15,  19,  21,  29,  and  30  of  The 
/Small  Debts  Act  of  1867  which  induced  me  to  reserve  the  questions. 

6.  The  jury  found  a  verdict  of  guilty  and  I  postponed  judgment 
until  the  questions  reserved  had  been  decided  and  accordingly 
committed  the  defendant  to  the  prison  at  Townsville  where  he 
now  is. 

7.  I  am  in  doubt  whether  the  second  section  of  The  Criminal 
Practice  Act  Amendment  Act  of  1876  has  not  been  repealed  by 
implication  by  The  Supreme  Court  Act  of  1889.  As  this  is  the  first 
case  reserved  by  a  Northern  Judge  since  the  passing  of  the  lattt  r 
Act  I  have  reserved  it  for  the  Court  at  Brisbane  in  order  that  the 
point  may  be  considered.  I  request  the  decision  of  the  Court 
upon  the  questions  reserved. 

C.  E.  Chubb,  J., 
Chambers,  Supreme  Court,  Northern  Judge. 

Townsville,  29th  April,  1891. 

Byrnes,  S.G.,  Scott  with  him,  for  the  Crown. 
There  was  no  appearance  for  the  defendant. 

Byrnes  :  The  question  of  jurisdiction  is  raised  in  this  case, 
whether  a  Crown  Case  Reserved  by  a  Northern  Judge  should  be 
heard  at  Brisbane  as  heretofore,  or  at  Townsville.     The  Supreme 


214  QUEENSLAND   JUSTICE   OF  THE    PEACE. 

Kegixa  v.         Court  Act  of  1889  expressly  repeals  The  Supreme  Court  Act  of  1874, 

^" ^'        ss.  15-21  inclusive,  and  the  Act  to  amend  The  Supreme  Court  Act 

of  1874  (41  Vic,  No.  17),  but  no  mention  is  made  of  The  Criminal 

Practice  Amendment  Act  of  1876.     By  s.  2  of  that  Act,  a  Crown 

Case  Reserved  by  a  Northern  Judge,    shall    be  heard    by  the 

Supreme  Court  sitting  at  Brisbane.     The  practice  is  regulated  by 

ss.  48  and  49  of  The  Criminal  Practice  Act  of  1865,  which  require 

the  case  to  be  transmitted  to  the  Judges  of  the  Supreme  Court. 

By  s.  7  of  The  Swpreme  Court  Act  of  1874,  the  Supreme  Court  is  to 

be  holden  before  three  Judges,  except  under  certain  circumstances. 

By  s.  17  of  The  Supreme  Court  Act  of  1889,  the  word  Townsville 

is  to  be  substituted  for  Brisbane.     But  this  is  only  a  quaUfied 

provision.     On  the  ground  of  convenience,  there  can  be  no  doubt 

the  cases  should  be  heard  in  Brisbane,  otherwise  there  might 

be  a  dijfference  of  opinion  between  the  two  Judges,  and  a  divergent 

criminal  practice  exist  in  two  parts  of  the  colony.     There  is  no 

provision  for  an  appeal  from  TownsviUe  to  Brisbane  in  criminal 

matters.     [Harding  J.  :    There  is  no  appeal  in  a  Crown  Case 

Reserved.]      Section  11  of  the  same  Act  excepts  jurisdiction  on 

appeal  from  a  decision  of  a  Judge  of  the  Supreme  Court,  and  s.  4, 

excepts  any  appellate  jurisdiction  vested  in  the  Full  Court  at 

Brisbane. 

The  Chief  Justice  :  That  decides  the  question.  Section  2 
of  The  Criminal  Practice  Act  of  1876  is  not  repealed.  The  appellate 
jurisdiction  in  criminal  cases  rests  with  this  Court  alone. 

Byrnes  :  As  to  the  merits,  the  difficulty  of  the  Judge  seems 
to  have  been  whether  there  was  a  judicial  proceeding,  as  the 
proceedings  had  not  been  amended.  [Habding  J.  :  The  question 
is  simply — Can  an  action  proceed  against  one  defendant  when  a 
non-suit  is  granted  to  another  ?]  The  defendants  were  in  partner- 
ship. [The  Chief  Justice  :  That  makes  no  difference.]  The 
points  reserved  are  within  the  words  of  Denman  J.,  in  Reg.  v. 
Hughes,  4  Q.B.D.  614,  at  637 — "  I  am  of  opinion,  however, 
that  we  ought  not  to  have  regard  to  the  conviction,  in  considering 
whether  perjury  was  committed,  but  to  look  to  the  moment  at 
which  the  false  evidence  was-given,  and  consider  whether  at  that 
moment  the  Magistrates  had  jurisdiction  to  hear  that  evidence 
judicially.  And  I  think  that  they  had  jurisdiction  to  hear  that 
evidence  judicially,  if,  at  the  time  at  which  it  was  given,  it  was 
evidence  which  in  any  possible  event,  they  might  have  acted 
upon  judicially  in  a  matter  within  their  jurisdiction  ;  whether  the 
result  of  their  acting  upon  it  might  have  been  to  convict,  or  to 


CEIMINAL  REPOKTS,  1860-1907.  215 

acquit,  or  to  adjourn,  or  to  send  for  trial,  or  to  take  bail,  or  to  do        EaaiNA  '• 
.          •■                                                   '                                '                          LuM  Hook. 
any  other  judicial  act  within  their  competency."  

The  Chief  Justice  :   We  think  this  was  a  judicial  proceeding,  The  Chief  Justice 
and  if  the  false  evidence  given  was  material,  that  there  was  perjury. 
We  answer  question  A,  yes  ;  and  question  B,  yes.     The  conviction 
is  sustained.     Let  the  Judge  give  judgment. 

Sohcitor  for  the  Crown :    J.  Howard  Gill. 


[Brisbane  Criminal  Sittings.] 
REGINA  V.  JOHNSON. 


[4  Q.L.J.  130.— Note.— Sec.  207  of  Insolvency  Act  (38  Vie.,  No.  5)  is  repealed,  see 
now  s.  519  of  Criminal  Code.] 

Criminal  law — Insolvency  Act  (38    Vic,  No.  5),   ss.   31,   207) —  1891. 

Married  woman — Separate  property — Married  Women's  Pro-     ^Oth  November. 
perty  Act  (54  Vic,  No.  9),  s.  3,  sub.  5.  Harding  J. 

A  married  woman  having  separate  property  is  liable  to  be  convicted  for  an 
offence  under  The  Insolvency  Act  of  1874. 

Information  against  Catharine  Mary  Agnes  Johnson,  for 
feloniously  quitting  the  colony  within  four  months  before  the 
presentation  of  a  petition  for  adjudication,  and  taking  with  her 
property  to  the  amount  of  £50  and  upwards,  being  a  married 
woman  with  separate  estate. 

Power  and  Mansfield,  for  the  Crown.  Gore  Jones  for  the 
prisoner. 

Harding  J.  raised  the  preliminary  question  as  to  the  liability 
of  a  married  woman  under  The  Insolvency  Act. 

Mansfield  :  The  information  is  laid  under  s.  207  of  The  Insol- 
vency Act.  By  s.  31  of  that  Act  the  provisions  of  the  insolvency 
laws  apply  to  all  debtors  resident  in  the  colony.  By  the  Married 
Women's  Property  Act  of  1890,  s.  3,  sub.  5,  every  married  woman 
shall,  in  respect  of  her  separate  property,  be  subject  to  the 
insolvency  laws  in  the  same  way  as  if  she  was  unmarried.  The 
prisoner  had  separate  property.  Eversley  on  Domestic  Relations, 
292  ;  Williams'  Bankruptcy  Practice,  315,  316  ;  Duffy  and  Irvine, 
Married  Women's  Property  Law,  149,  151  ;  Re  Gardiner,  20 
Q.B.D.  249  ;  Holtby  v.  Hodgson,  24  Q.B.D.  103  ;  Scott  v.  Morley, 
20  Q.B.D.  121. 


216 


QUEENSLAND  JUSTICE   OF  THE   PEACE. 


Regina  I). 
Johnson. 

Harding  J. 


Habding  J.  directed  the  jury,  who  found  the  prisoner  guilty, 
with  a  recommendation  to  mercy  on  the  ground  that  the  prisoner 
was  not  altogether  a  free  agent  in  the  matter.  It  was  also 
suggested  by  a  juror  that  a  married  woman  was  supposed  to- 
obey  her  husband. 

Habding  J.  :  That  presumption  does  not  apply  in  cases  of  this 
sort.  These  women  have  fought  for  their  rights.  Now  they 
have  got  them  and  must  suffer  Uke  men.  It  is  just  as  well  for 
women  to  know  that,  having  demanded  and  obtained  the  rights 
of  men,  they  are  subject  to  the  same  penalties  in  the  event  of 
their  transgressing  the  law.  A  year  ago  an  offence  of  this  nature 
was  not  a  crime  under  the  law,  but  the  Legislature  had  now  placed 
women  in  the  same  position  as  men,  and  they  have  to  suffer 
accordingly. 

Prisoner  sentenced. 

Solicitors  for  prisoner  :   Chambers,  Bruce  and  McNah. 


1892. 
24th  February. 

Chubb  J. 


[NoBTHERN  Supreme  Court,  Townsvillb.] 

HENDERSON,  APPELLANT,  v.  MACDONALD,  P.M.,  AND 
McKIERNAN,  RESPONDENTS. 

[4  Q.L.J.  133.— Note.— Sees.  181  and  182  of  the  Justices  Act  (50  Vic,  No.  17)  are 
repealed,  see  now  ss.  443,  444  of  Criminal  Code.  Sec.  102  ot  Larceny  Act 
is  repealed,  see  now  s.  443  (1)  ot  Criminal  Code.] 

Justices  Act  (50  Vic,  No.  17),  ss.  181, 182Summary  jurisdiction- 
Receiving  stolen  goods — Larceny  Act  of  1865,  ss.  4,  96,  102. 

In  cases  of  receiving  stolen  property,  the  summary  jurisdiction  of  justices  ia 
restricted  to  the  specific  cases  covered  by  s.  102  of  The  Larceny  Acl. 
A  summary  conviction  for  receiving  stolen  shutters  quashed. 

This  was  a  motion  under  s.  209  of  The  Justices  Act  of  1886,  to 
quash  a  conviction. 

Jameson,  for  the  appellant,  moved  the  rule  absolute. 

Ross,  for  the  respondent,  J.  G.  Macdonald,  P.M.,  showed  cause. 

McKiernan,  the  other  respondent,  showed  cause  against  costs 

only. 

The  facts  of  the  case  were  that  on  the  19th  of  January  last  two 
wooden  shutters,  the  property  of  McKiernan,  were  found  by  a 
pohce  constable,  armed  with  a  search  warrant,  upon  the  verandah 


CRIMINAL  REPORTS,   1860—1907. 


217 


of  the  appellant's  dwelling.  Appellant  told  the  constable  that 
he  did  not  claim  them,  or  know  whose  they  were,  that  they  were 
brought  there  by  his  son  the  afternoon  before,  while  he  was 
from  home,  and  that  on  his  return  he  saw  them  there.  The 
shutters  were  last  seen  upon  McKiernan's  shop  on  the  16th,  and 
were  missed  on  the  18th  January.  The  appellant's  son,  called 
for  the  defence,  corroborated  his  father's  statement  and  said 
that  he  found  the  shutters  upon  the  bank  of  a  creek  about  one 
hundred  yards  from  the  shop.  Appellant's  wife  swore  to  the 
son  bringing  the  shutters  home.  The  appellant  was  charged 
with  larceny  and,  electing  to  be  tried  summarily,  was  coni^icted 
of  receiving  the  shutters  and  fined. 

Chubb  J.  :  The  appellant  was  tried  summarily  by  the  Pohce 
Magistrate  at  Townsville  under  ss.  181  and  182  of  The  Justices 
Act  of  1886,  for  the  larceny  of  two  wooden  shutters,  under  the 
value  of  40s.,  the  property  of  McKiernan,  and  was  convicted  by 
the  Justice  of  feloniously  receiving  them  knowing  them  to  have 
been  solen.  The  rule  granted  by  me  to  show  cause  why  the 
conviction  should  not  be  quashed  contains  two  grounds,  viz. : 
(1)  No  evidence  to  support  the  conviction  ;  (2)  That  this  offence 
is  not  punishable  on  summary  conviction.  On  the  first  ground 
I  am  against  the  appellant.  The  Justice  was  evidently  not 
satisfied  with  the  account  given  by  him  as  to  how  he  became 
possessed  of  the  property,  consequently  the  presumptive  evidence 
of  guUt  arising  from  the  recent  possession  of  stolen  property  was 
not  rebutted,  and  there  was,  therefore,  some  evidence,  though 
sHght,  upon  which  he  could  convict.  I  do  not  think  that  upon 
that  evidence  I  should  have  come  to  the  same  conclusion,  but 
I  cannot  go  so  far  as  to  say  that  the  Justice  was  wrong.  It  ia 
not  enough  to  say  that  the  evidence  was  weak  or  conflicting, 
or  that  this  Court  might  have  come  to  a  different  conclusion — 
the  rule  is  that,  as  the  Justices  are  the  judges  of  the  facts,  their 
finding  will  not  be  reversed  unless  it  clearly  appears  that  they  are 
wrong,  or,  to  put  it  in  other  words,  that  there  was  no  reasonable 
evidence  to  support  the  conviction.  It  cannot,  therefore,  be 
disturbed  on  this  ground.  On  the  second  ground  a  question  of 
the  construction  of  the  Statute  is  involved.  The  question  is 
whether  the  offence  of  receiving  stolen  shutters  can  be  dealt  with 
summarily  by  Justices.  Having  regard  to  the  provisions  of 
of  ss.  181  and  182,  and  to  the  offences  there  enumerated,  one 
would,  I  think,  expect  to  find  the  cognate  offence  of  receiving 
stolen  property  amongst  them,  but  a  careful  reading  of  them  does 


Hendebson, 

Appellant,  v. 

Maodonald, 

P.M.,  AND 

Eebposdents. 


Chubb  J. 


218 


QUEENSLAND  JUSTICE   OF  THE  PEACE. 


Hendebson, 

Appellant,  v. 

Macdonald, 

P.M.,  AND 
McElEBNAN, 

Eespondents. 
Chubb  J. 


not  disclose  any  express  mention  of  that  offence.  If,  therefore,  it 
is  covered  by  the  sections,  it  must,  I  think,  be  found,  if  anjrwhere, 
imphed  in  sub-section  2  of  8.  181  as  an  offence  "  declared  to  be 
punishable  as  simple  larceny."  Now  the  offence  of  simple  larceny 
is,  by  s.  4  of  The  Larceny  Act  of  1865,  punishable  at  the  discretion 
of  the  Court  by  penal  servitude  for  three  years  or  imprisonment 
not  exceeding  two  years  with  or  without  hard  labour,  &c.,  whereaf 
the  punishment  for  the  offence  of  receiving  is,  by  s.  96  of  the 
same  Act,  to  be  at  the  like  discretion  penal  servitude  for  any 
term  not  less  than  three  or  more  than  fourteen  years,  or  similar 
imprisonment,  &c.,  as  in  simple  larceny.  Here,  therefore,  it  is 
patent,  without  more,  that  receiving  is  not  "  punishable  as 
simple  larceny,"  which  words  I  understand  to  mean  "  liable 
to  the  same  punishment."  The  counsel  for  the  respondent, 
however,  relies  upon  s.  102  of  the  Act,  which  provides  that  where 
the  stealing  of  property  is  by  this  Act  (Larceny  Act)  punishable 
on  summary  conviction,  the  receiver  of  such  property,  knowing 
the  same  to  be  unlawfully  come  by  (this  expression  is  peculiar) 
shall  be  liable,  on  summary  conviction  before  Justices,  to  the  same 
punishment  as  the  thief  would  be.  Counsel  for  the  respondent 
has  failed  to  point  out,  and  I  have  been  unable  to  discover  for 
myself,  that  the  stealing  of  shutters  is  by  this  Act  made  punishable 
on  summary  conviction  before  Justices  ;  if  this  is  so,  therefore 
the  offence  of  receiving  shutters  cannot  by  virtue  of  s.  102  be 
so  punishable.  There  is  a  number  of  things  specially  named 
in  the  Act,  the  stealing  of  which  is  made  punishable  "as  in  the 
case  of  simple  larceny,"  to  which  the  provisions  of  s.  102  apply, 
but  shutters  are  not  included  in  them — see  for  example  ss.  26, 
32,  33,  36.  37.  Then  (apart  altogether  from  The  Justices  Act)  is, 
there  any  other  statute  which  makes  the  steahng  and  receiving  of 
shutters  punishable  on  summary  conviction  ?  I  cannot  find  any, 
and  the  research  of  counsel  has  produced  none.  It  appears 
to  me,  therefore,  that  the  offence  of  receiving  in  this  case  is  not 
within  the  summary  jurisdiction  of  justices,  and  that  the  Police 
Magistrate  was  wrong  in  so  dealing  with  it.  The  result  is  curious, 
because  if  he  had  convicted  the  appellant  of  stealing  the  shutters, 
the  conviction  would  have  been  good  under  The  Justices  Act.  In 
cases  of  receiving  stolen  property,  the  summary  jurisdiction  of 
justices  is,  therefore,  in  my  opinion,  restricted  to  the  specific  cases 
covered  by  s.  102  of  The  Larceny  Act,  consequently  this  conviction 
must  be  set  aside,  but  under  the  circumstances,  without  costs.  It 
may  be,  and  probably  is,  a  casus    omissus   on  the  part  of  the 


CRIMINAL  EEPORTS,   1860—1907. 


219 


draftsman,  as  the  addition  of  the  words,  "or  the  offence  of 
receiving  stolen  property  the  stealing  of  which  would  be  simple 
larceny,"  at  the  end  of  subsec.  2  of  s.  181,  would  have  covered 
the  point.  A  consequential  amendment  would,  of  course,  be 
necessary  in  s.  182.  Order  absolute  to  quash  the  conviction 
without  costs. 

Solicitor  for  appellant  :    E.  J.  Forrest. 

Solicitor   for   respondent   P.M.  :     C.   Selwyn  Smith,   Northern 
Crown  Solicitor. 


Henderson, 

Appellant,  v. 

Maodonald, 

P.M  ,  AND 

McKlEKNAN, 

llESPOXDENTS. 

Chubb  J. 


[Pull  Court.] 
BILBY  V.  HARTLEY  AND  OTHERS. 


[4  Q.L.J.  137.— Note. 


-6  Geo.  IV.,  c.  129,  s.  3,  is  repealed,  see  now  s.  534  ot  Criminal 
Code.] 

Criminal  law — Intimidation — 6  Geo.  IV.,  c.  129,  s.  3 — Effect  of 
9  Geo.  IV.,  c.  83 — Excessive  fine — Amendment — Justices  Act 
(50  Vic,  No.  17),  ss.  173,  174,  214,  223,  225. 

B.  was  convicted  on  a  charge  of  intimidation  under  6  Geo.  IV.,  c.  129,  s.  3. 
Certain  shearers,  besides  B.,  were  endeavouring  to  raise  subscriptions  for  the 
defence  of  some  fellow  labourers  then  committed  to  trial.  B.  and  another  shearer 
asked  some  free  labourers  to  subscribe  to  the  fund.  They  refused  to  do  so.  B. 
then  said  "  If  you  come  here  to  dinner  I'll  chuck  you  out,"  and  made  use  of  very 
foul  language.  The  free  labourers  were  also  told  if  they  came  in  to  tea  they  would 
be  very  roughly  handled.  They  considered  their  lives  in  danger,  and  complained 
to  the  manager  of  the  station.  The  justices  fined  B  £10  and  £25  123.  8d.  for  costs, 
in  all  £35  12s.  8d.,  or  in  default  three  months'  imprisonment  with  hard  labour. 

Held,  that  the  language  used  amounted  to  intimidation ;  that  the  fine  was 
excessive  under  s.  173  of  The  Justices  Act,  inasmuch  as  the  defendant  would  be 
liable  to  imprisonment  for  six  months  under  s.  174  of  that  Act,  while  the  greatest 
term  of  imprisonment  under  6  Geo.  IV.,  c.  129,  was  three  months,  and  that  the 
fine  must  be  reduced  to  £4  19s.  llfd.,  and  the  conviction  be  upheld. 

6  Geo.  IV.,  u.  129,  is  applicable  to  Queensland.  The  effect  of  9  Geo.  IV.,  c.  83, 
discussed. 

Motion  for  a  rule  absolute  quashing  the  conviction  of  Frederick 
Bilby,  a  shearer,  before  Messrs.  W.  J.  Hartley,  P.M.,  and  P.  J. 
Phillips,  J.P.,  at  Blackall,  22nd  of  September  last,  on  a  charge  of 
intimidation,  on  the  grounds  that  the  justices  had  no  power  or 
authority  (1)  to  impose  or  order  payment  of  a  fine  ;  (2)  to  impose 
or  order  payment  of  a  fine  with  alternative  imprisonment ;    (3)  to 


1892. 

February. 


220  QUEENSLAND   JUSTICE   OF  THE   PEACE. 

■^Tro  Omers'!'''  °^^^^  *^®  payment  of  the  sum  of  7s.  8d.  for  costs  ;   (4)  to  order  the 

payment  of  the  sum  of  £15   15s.   cost  of  witnesses'   travelling 

expenses  ;  (5)  to  order  payment  of  the  fine  of  £10  10s.  ;  (6)  to 
impose  the  penalty  and  imprisonment  ordered  ;  (7)  that  the 
statute  6  Geo.  IV.,  c.  129,  is  not  in  force  in  the  colony  of  Queens- 
land ;  (8)  that  there  was  no  evidence  before  the  justices  of 
intimidation  under  the  lastmentioned  statute. 

Lilley,  and  Conlan,  to  move  absolute  the  order  nisi ;  Sir  S.  W. 
Griffith,  Q.C.,  A.G.,  Byrnes,  S.G.,  and  W.  A,  D.  Bell,  for  the  Crown. 

Lilley  :  The  facts  of  the  case  are  these  :  Prior  to  September,  9th 
1890,  certain  persons  were  committed  for  trial  at  Rockhampton  for 
cutting  Ebor  Creek  Bridge.  The  shearers  in  the  western  parts  of 
the  colony,  of  whom  Bilby  was  one,  were  raising  subscriptions 
for  the  defence  of  the  prisoners,  and  to  get  them  witnesses  and 
food  during  the  time  they  awaited  trial.  This  was  being  done  at 
Terrick  station,  near  Blackall,  where  Bilby  was  working.  On  the 
morning  of  September  9th  he  and  Turbot  asked  certain  free 
labourers  at  the  breakfast  table  to  subscribe.  The  evidence  at  the 
prosecution  was  as  follows  :  Turbot  said,  "  Do  any  of  you  fellows 
refuse  to  pay  6s.  lOd.  towards  defraying  the  rations  fund  of  the 
shearers  awaiting  trial  at  Rockhampton  over  the  Ebor  Creek 
affair."  AUis  said,  "  I  refuse  to  pay,"  and  so  did  Oakden  and 
Riding.  Turbot  then  went  to  his  mates  amongst  the  unionists, 
who  refused  to  eat  at  the  same  table  as  the  free  labourers,  and  said, 
"  Here's  these  men  refuse  to  subscribe.  I'll  make  one  to  chuck 
them  out."  Bilby  went  over  to  the  three  and  said,  "  Do  you 
refuse  ?  All  the  rest  have  paid."  Allis  replied,  "  I  refuse." 
Bilby  said,  "  Then  don't  come  here  to  dinner  ;  if  you  do  I'll 
chuck  you  out."  At  midday  they  all  went  to  their  dinner  as 
usual,  when  Turbot  produced  a  number  of  lists  for  the  men  to  sign 
for  the  expenses  of  the  witnesses.  Turbot  asked  Allis  to  sign, 
and  he  refused.  Turbot  again  said  to  his  mates,  "  Here  are  three 
men  who  won't  sign,  I'll  make  one  to  chuck  them  out."  Bilby  said 
to  AUis  and  Oakden,  "  If  you  come  to  tea  you  will  be  chucked 
out,"  and  Turbot  added,  "  I'll  make  one  to  chuck  them  out  as  fast 
as  they  come  in."  At  tea  time  the  three  went  for  their  tea, 
and  found  nothing  had  been  left  for  them.     Turbot  said,  "  If  any 

of  you  come  in  you  will  be handled."     Allis  accordingly 

considered  his  life  was  in  danger.  He  went  over  to  Sutherland, 
the  overseer,  and  had  his  tea  with  him.  The  next  day  AUis 
spoke  to  the  manager,  and  he  advised  him  to  seek  the  protection 
of  the  law.     The  overseer  also  spoke  to  Bilby,  who  refused  "  to 


CRIMINAL   EEPOETS,   1860—1907.  221 

cook  for  the scabs."     Allis  subsequently  laid  an  information  ^"''^'^  «.  Hartlett 

against  Bilby  under  s.  3  or  6  Geo.  IV.,  c.   129.     That  section  

provided  that  every  person  who  by  violence,  threats,  or  other 
means,  intimidated  another,  should,  on  conviction,  be  sentenced 
to  imprisonment,  or  be  imprisoned  for  any  time  not  exceeding 
three  months,  with  hard  labour.  Under  s.  173  of  The  Justices 
Act,  power  was  given  to  a  magistrate  to  substitute  a  fine  for 
imprisonment,  to  any  amount  not  exceeding  £25,  provided  the 
amount  should  not  be  such  as  would  subject  the  offender,  in 
default  of  the  penalty,  to  any  greater  term  of  imprisonment 
than  that  to  which  he  was  Uable  under  the  Act  authorising  his 
imprisonment.  In  this  case  the  period  of  imprisonment  fixed 
by  the  section  of  the  Act  of  George  IV.  was  three  months.  The 
Justices,  however,  fined  Bilby  £10  and  £25  12s.  8d.  costs,  or  in  all 
£35  12s.  8d.,  or  in  default  three  months'  imprisonment  with  hard 
labour.  Among  the  costs  they  included  the  expenses  of  Bilby's 
commitment  (in  the  event  of  his  not  paying  the  fine),  and  of  his 
conveyance  from  Blackall  to  the  Rockhampton  Gaol.  Under 
s.  174  of  The  Justices  Act  they  had  no  power  to  inflict  a  fine  of 
more  than  £5,  because  if  they  had  imposed  a  greater  fine  they 
would  have  subjected  the  offender  to  a  term  of  imprisonment 
exceeding  the  three  months  which  he  was  liable  to  under  the 
Act  of  George  IV.  [Harding  J.  :  They  only  gave  him  three 
months.]  That  was  so  ;  but  they  made  him  run  the  risk  of 
getting  six  months,  because  by  imposing  a  fine  of  more  than  £5, 
they  laid  him  open  to  imprisonment  for  six  months.  They  also 
ordered  him,  in  default,  to  pay  the  costs  of  his  commitment  and 
conveyance  to  Rockhampton  Gaol.  Those  costs  were  an  un- 
ascertained amount,  and  it  would  have  been  possible  for  Bilby's 
gaoler  to  have  kept  him  in  prison  for  an  indefinite  time,  and  to 
have  made  him  pay  an  indefinite  amount.  [Real  J.  :  They 
first  impose  a  fine,  and  if  he  does  not  pay  they  make  an  order 
for  his  commitment,  but  before  that  is  carried  out,  the  amount 
he  has  to  pay  has  to  be  specified  in  the  warrant  of  commitment.] 
I  object  to  all  the  findings  of  the  justices,  and  maintain  that  the 
statute  of  Geo.  IV.  did  not  apply,  and  that  there  was  no  evidence 
under  it  of  intimidation. 

Griffith,  Q.G.,  A.G.  :  The  Solicitor-General  and  myself  are  here 
because  this  case  raises  matters  of  great  importance.  It  raises  the 
question  of  whether  a  statute  was  in  force  in  the  colony  which 
was  supposed  to  be  in  force,  and  under  which  persons  had  been 
deprived  of  their  Uberty.     If  the  statute  was  not  in  force,  the 


222  QUEENSLAND  JUSTICE   OF  THE   PEACE. 

BiLBT  i>.  Hartley  sooner  that  was  made  clear  the  better.     Certainly  we  are  not  in 
AND  Others.  .  ■  •■      ,  . 

court  to  discuss  a  question  of  form  in  connection  with  this  con- 
viction. We  are  here  on  behalf  of  the  Crown  to  assist  the  court 
to  come  to  a  conclusion  on  the  matter,  and  not  on  behalf  of  the 
respondent.  [Harding  J.  :  If  this  conviction  is  bad  in  form, 
you  may  never  get  to  the  other  question.  The  Chief  Justice  : 
I  doubt  very  much  whether  you  could  amend  the  conviction  under 
the  statute  in  this  case.]  The  rule  raised  a  question  of  great 
importance,  and  we  are  here  to  meet  it,  but  now  there  appears 
to  be  a  technical  defect  on  the  face  of  the  conviction.  [Hahding 
J.  :  All  the  sentences  under  this  Act  have  expired  a  long  time 
ago,  and  there  cannot  be  any  person  suffering  under  it  now.] 

Lilley  :  The  Rockhampton  men  were  not  sentenced  under 
that  Act,  but  under  common  law. 

Harding  J.  :  There  was  a  great  parade  at  first  of  this  sort 
of  thing,  and  I  looked  at  Geo.  IV.,  but  I  did  not  use  it  in  any 
shape  or  form.  I  always  carefully  avoid  anything  which  may 
possibly  burn  my  fingers. 

The  Chief  Justice  :  If  it  turns  out  that  Geo.  IV.  is  touched 
upon  by  anyone,  if  necessary  we  will  decide  it ;  but  we  may  never 
get  to  it. 

The  Attorney-General :  On  the  question  of  amendment,  pro- 
vision was  made  in  ss.  213,  214,  and  223  of  The  Justices  Act  to 
correct  convictions  and  impose  a  proper  penalty.  Section  223 
laid  down  that  "  when  on  a  conviction  there  is  some  excess  which 
may  (consistently  with  the  merits  of  the  case)  be  corrected,  the 
conviction  shall  be  amended  accordingly,  and  shall  stand  good 
for  the  remainder."  The  amount  which  the  justices  had  power  to 
impose  was  not  more  than  £5,  and  there  was  some  doubt  whether 
it  must  not  be  less  than  £5.  Under  the  scale  given  in  s.  174  it 
must  be  less.  [The  Chief  Justice  :  We  are  inclined  to  think 
that  the  amount  ought  to  be  reduced  to  £4  19s.  llfd.  At  present 
we  relieve  of  the  burden  of  the  question  of  excess.]  I  do  not 
pretend  that  there  is  no  excess.  [The  Chief  Justice  :  No,  that 
is  clear.  The  action  of  the  justices  would  have  exposed  the  man 
to  six  months'  imprisonment  instead  of  three.  The  fine  is  a 
most  excessive  one,  and  ought  to  be  reduced  to  £4  19s.  llfd.] 
Then  the  main  question  is  whether  the  statute  is  in  force  in  the 
colony.  I  contend  that  the  statute  is  in  force.  It  had  been 
suggested  at  one  time  that  it  appUed  only  to  the  rules  of  practice 
in  the  Court.     [The  Chief  Justice  :    It  was  suggested  by  Lord 


CRIMINAL   REPORTS,    1860—1907.  223 

Chelmsford,  but  never  seriously  argued.     It  was  not  even  an  obiter  ^^^^'^ «.  Hartley 

dictum.]     The  administration  of  justice  had  gone  on  since  that,  

and  all  the  laws  of  England  relating  to  property  and  to  criminal 
matters,  so  far  as  they  could  be  applied  to  the  conditions  of  the 
colony,  are  in  force  here.  Blackstone,  in  his  definition  of  those 
statutes,  said  :  "  That  so  much  of  them  remained  in  force  as  were 
apphcable  to  the  circumstances  and  conditions  of  the  colony  in 
which  it  was  sought  to  apply  them."  6  Geo.  IV.,  c.  129,  is  a 
statute  applying  to  criminal  offences';  9  Geo.  IV.,  c.  83,  which 
repealed  many  Acts  relating  to  workers,  extended  such  statutes 
as  were  applicable  to  the  condition  and  circumstances  of  the 
colony.  [Haeding  J. :  All  the  labour  laws  against  labour  were 
repealed,  but  not  this  one.]  My  contention  is  that  6  Geo.  IV., 
c.  129,  being  a  law  relating  to  the  liberty  of  the  subject,  and  for 
protection  of  the  subject  from  violence  to  his  body,  and  what  was 
akin  to  intimidation  in  my  mind,  is  one  applicable  to  the  con- 
ditions and  circumstances  of  the  colony.  In  the  case  of  Regina  v. 
Druitt,  10  Cox  C.C.  592,  Lord  Bramwell  said  "  that  there  was  no 
right  in  this  country  under  our  laws  so  sacred  as  the  right  of 
personal  liberty.  No  right  of  property  or  capital,  about  which 
there  had  been  so  much  declamation,  was  so  sacred  or  so  carefully 
guarded  by  the  law  of  this  land  as  that  of  personal  liberty. 
They  were  quite  aware  of  the  pains  taken  by  the  common  law — 
by  the  writ,  as  it  was  called — of  habeas  corpus,  and  supplemented 
by  statute,  to  secure  to  every  man  his  personal  freedom,  that  he 
should  not  be  put  in  prison  without  lawful  cause,  and  that,  if  he 
was,  he  should  be  brought  before  a  competent  magistrate  within  a 
given  time,  and  be  set  at  Uberty  or  undergo  punishment.  But 
that  liberty  was  not  liberty  of  the  body  only.  It  was  also  a 
liberty  of  the  mind  and  will ;  and  the  liberty  of  a  man's  mind  and 
win  to  say  how  he  should  bestow  himself  and  his  means,  his 
talents,  and  his  industry,  was  as  much  a  subject  of  the  law's 
protection  as  was  that  of  his  body.  Generally  speaking,  the  way 
in  which  people  had  endeavoured  to  control  the  operation  of  the 
minds  of  men  was  by  putting  restraints  on  their  bodies,  and, 
therefore,  we  had  not  so  many  instances  in  which  the  liberty  of 
the  mind  was  vindicated  as  was  that  of  the  body.  Still  if  any 
set  of  men  agreed  among  themselves  to  coerce  that  liberty  of 
mind  and  thought  by  compulsion  and  restraint,  they  would  be 
guilty  of  a  criminal  offence,  namely,  that  of  conspiring  against 
the  liberty  of  mind  and  freedom  of  will  of  those  towards  whom 
they  so  conducted  themselves."     And  he  laid  it  down  as  clear 


224  QUEENSLAND  JUSTICE   OF  THE    PEACE. 

BiLBTD  Hartley  ^nd  undoubted  law  "  that  if  two  or  more  persons  agreed  that  they 

AND    OtHEBS.  1  •        j.     j.1.     j.     tt 

would  by  such  means  co-operate  together  against  that  hberty 

they  would  be  guilty  of  an  indictable  offence."  That  was  the 
common  law  of  the  offence  which  had  been  re-enacted  by  9  Geo.  IV. 
c.  83.  If  any  serious  argument  is  to  be  made  that  the  language 
used  is  not  intimidation,  I  refer  to  this  ease.  The  language  used 
is  stronger  than  any  previously  reported.  No  decent  person 
could  remain  on  the  station  and  submit  to  it.  [Real  J.  :  If  it 
were  applied  to  me,  and, there  were  a  great  number  there,  I  should 
provide  myself  with  a  pistol.  I  would  rather  pay  the  6s.  lOd. 
than  have  it  applied  to  me.]  Most  men  would  prefer  to  pay 
6s.  lOd.  rather  than  submit  to  such  language.  This  was  a  criminal 
offence  under  6  Geo.  IV.,  c.  129,  and  re-enacted  as  such  by  9  Geo. 
IV.,  c.  83.  The  former  statute  was  equally  applicable  to  New 
South  Wales  as  to  any  other  place.  It  was  an  Act  for  the  liberty 
of  the  subject,  and,  therefore,  came  within  the  words  of  the 
statute  which  brought  such  laws  into  force  as  were  applicable 
to  the  circumstances  and  conditions  of  the  colony.  [The  Chief 
Justice  :  I  think  the  offence  comes  under  the  3rd  section  of  the 
Act,  and  would  affect  the  mind  of  any  reasonable  being.]  Under 
that  section,  it  was  held  in  O'Neil  v.  Longman,  4  B.  &  S.  376,  that 
asking  a  man  whether  he  intended  to  remain  in  a  shop  after  the 
others  had  gone  out  on  strike,  and  have  his  name  circulated 
throughout  England,  was  an  offence.  [The  Chief  Justice  : 
Very  likely.  In  the  old  days  tradesmen  had  travelling  cards 
allowing  them  to  visit  town  after  town  until  they  gradually 
worked  their  way  to  London.  Such  a  thing  would  seriously 
affect  them.  There  is  nothing  either  on  the  face  of  the  statute 
or  in  the  circumstances  of  the  colony  to  make  6  Geo.  IV.  excep- 
tional.] No.  It  is  an  Act  that  applies  to  all  trades  for  the 
protection  of  property,  and  therefore  comes  within  the  laws  of 
the  colony.     On  the  merits  the  matter  entirely  fails. 

Byrnes  S.G.  :  If  the  statute  9  Geo.  IV.,  c.  83,  came  into  force 
in  New  South  Wales,  and  remained  in  force  in  that  colony,  it 
would  of  course  have  come  into  force  here  by  virtue  of  The 
Constitution  Act,  s.  33.  In  Webb's  Imperial  Law  and  Statutes, 
p.  4,  a  dictum  of  Blackstone  is  quoted.  "  Colonists  carry  with 
them  only  so  much  of  the  English  law  as  is  applicable  to  their 
own  situation  and  the  condition  of  an  infant  colony  ;  such,  for 
instance,  as  the  general  rules  of  inheritance,  and  of  protection 
from  personal  injuries."  [Habding  J.  referred  to  Yeap  Cheah 
Neo  V.  Ong  Cheng  Neo,  L.R.  6,  P.C.  381.]     This  was  a  statute 


CEIMINAL  EEPOETS,  1860-1907.  225 

designed  to  protect  men  from  intimidation  and  violence,  and  it  Bilby  «.  Hartley 

111-           11-                                      .1                                     T                       *''i>  Othebs. 
would  be  introduced  into  the  colony  with  civilisation.     [Haeding  

J.  :    A  considerable  portion  of  criminal  laws  are  statutory,  and 

can  be  applied  to  the  colonies.     Those  in  reference  to  the  king, 

for  instance.     If  there  can  be  special  statutes  provided  for  the 

king,  why  not  provide  them  for  individuals  ?]     That  argument 

is  unanswerable. 

Lilley,  in  reply  :  To  decide  whether  6  Geo.  IV.,  c.  129,  was 
applicable  to  the  colony,  we  must  look  at  the  state  of  New  South 
Wales  at  the  time  it  was  passed.  From  the  Acts  quoted  I  will 
show  that  the  condition  of  labour  in  that  colony  then  was  entirely 
different  to  what  it  was  in  England.  At  that  time  it  was  not 
competent  in  New  South  Wales  for  employers  to  engage  appren- 
tices until  they  passed  an  Act  for  that  purpose.  That  Act 
happened  to  come  into  force  only  eight  days  before  9  Geo.  IV.,  13, 
was  passed  in  England.  The  English  statute  was  passed  to  remedy 
the  previous  laws  which  were  found  to  be  inapplicable  to  the 
state  of  affairs  then  existing  amongst  tradesmen.  [Habding  J.  : 
Would  not  the  same  observations  apply  to  the  Magna  Charta  ?] 
No.  Magna  Charta  protected  all  England,  "without  applying 
to  any  particular  class.  6  Geo.  IV.  was  passed  to  deal  with 
labourers  only.  By  its  preamble  it  could  be  seen  it  was  specially 
intended  for  local  purposes.  In  1828  the  majority  of  the  work- 
men in  New  South  Wales  were  convicts.  [Haeding  J.  :  Surely 
you  don't  contend  that  when  New  South  Wales  was  made  free 
people  could  only  come  to  the  colony  subject  to  convict  laws  ?] 
Would  this  Act  then  relate  to  a  combination  amongst  criminal 
classes  ?  [Hakding  J.  :  No.  When  9  Geo.  IV.,  83,  was  passed, 
it  applied  to  free  people.]  9  Geo.  IV.,  No.  9,  which  was  passed  in 
New  South  Wales  years  after  No.  6,  was  the  first  Act  to  deal  with 
labourers  in  the  colony.  In  the  preamble  it  says  :  "  Whereas 
as  many  Acts  are  not  applicable  to  New  South  Wales."  That 
shows  what  the  people  thought  then.  [Real  J.  :  9  Geo.  IV. ,9, 
deals  with  the  relations  of  masters  and  servants,  and  not  with 
labourers'  relations  amongst  themselves.  [The  Chief  Justice  : 
Then  that  Act  would  not  help  us  much.]  9  Geo.  IV.,  No.  8, 
provides  for  employers  engaging  apprentices  in  New  South  Wales. 
If  people  brought  the  laws  of  England  with  them,  what  was  the 
use  of  passing  this  Act  ?  [Real  J.  :  You  can  hardly  make  out 
that  the  laws  do  not  apply  to  the  colony  when  the  legislature 
states  they  shall  apply.]  It  has  been  held  that  before  you  can 
say  9  Geo.  IV.,  83,  applies,  you  must  look  at  the  circumstances  of 


226  QUEENSLAND  JUSTICE  OP  THE  PEACE. 

BiLBT  u.  Haktley  ti^e  colony.     Otherwise,  you  cannot  say  tliat  the  Act  is  appHcable. 

That  is  the  ruling    in    the    Penang  case  of  Yea'p  Cheah  Neo  v. 

Ong  Cheng  Neo,  L.R.  6  P.O.  381.  I  contend  that  the  circum- 
stances of  the  colony  were  so  entirely  different  at  that  time,  that 
the  old  English  Act  could  not  apply.  The  first  Masters  and 
Servants  Act  in  England  was  9  Geo.  IV.,  c.  9.  [The  Chief 
Justice  :  The  Masters  and  Servants  Act  before  that  was  the 
whip.]  9  Geo.  IV.,  c.  83,  also  dealt  with  masters  and  servants, 
and  absconders,  besides  dealing  with  servants  against  servants. 
The  very  necessity  of  passing  an  Act  like  8  Geo.  IV.,  shows  that 
No.  9  did  not  deal  with  the  colonies.  In  Whicker  v.  Hume, 
129,  7  H.L.,  124,  it  was  held  that  the  statutes  of  mortmain  did 
not  apply  to  the  colony  of  Grenada,  there  being  no  special  circum- 
stances therein  for  such  application  ;  and  it  was  also  held  that 
9  Geo.  IV.,  c.  83,  had  not  local  appUcation,  although  the  subse- 
quent opinions  on  this  point  went  the  other  way.  Again 
6  Geo.  IV.,  c.  129,  prescribed  a  remedy  in  certain  courts  which 
had  not  similar  courts  in  New  South  Wales. 

Sir  S.  W.  Griffith  :  9  Geo.  IV.  empowers  the  colonies  to  estab- 
lish courts  of  quarter  session. 

Lilley  :  But  that  was  afterwards.  [Sir  S.  W.  Griffith  :  Courts 
of  quarter  sessions  were  authorised  to  be  estabHshed  in  New 
South  Wales  by  4  Geo.  IV.,  c.  96.  [Real  J.  :  It  is  quite  clear 
that  there  were  courts  of  quarter  session  in  the  colonies  before 
6  Geo.  IV.]  In  another  case,  that  of  the  Attorney-General 
V.  Stewart,  2  Merivale  143,  mortmain  statutes  were  held  to  apply 
entirely  in  England.  I  contend  that  6  Geo.  IV.,  c.  129,  was 
specially  passed  for  England,  and  at  the  time  of  9  Geo.  IV.,  c.  83, 
was  never  intended  to  apply,  and  did  not  apply  to  New  South 
Wales.  That  is  borne  out  by  the  Penang  cases,  where  the  Judges 
held  that  the  statutes  particular  to  England  did  not  become  part 
of  the  Penang  laws,  because  the  common  law  had  been  introduced 
into  them.  [Haeding  J.  :  To  show  that  6  Geo.  IV.,  c.  129, 
cannot  be  applicable  to  New  South  Wales,  you  have  got  to  prove 
that  only  convicts  were  working  there  when  the  Act  was  passed. 
There  were  sailors  going  to  that  colony  then.  How  about  them  ?] 
6  Geo.  IV.  does  not  apply  in  any  way  to  sailors.  [The  Chief 
Justice  :  I  take  it  the  position  is  this.  6  Geo.  IV.,  c.  129,  was 
passed  for  the  condition  of  things  existing  in  England  at  that 
time.  The  same  condition  of  affairs  was  not  existing  when  9 
Geo.  IV.,  e.  83,  was  passed  ;  but  if  the  circumstances  arose  which 
made  9  Geo.  IV.  applicable  in  New  South  Wales,  it  would  be 


CEIMINAL   REPORTS,    1860-1907.  !i27 

applicable  for  all  time  unless  repealed.]     I  contend  that  6  Geo.  IV.  ^'''''*  «.  Habiley 

^  -■  AND    UTHEIta, 

-was  passed  purely  for  local  circumstances.     If  those  same  circum-  — 

stances  now  apply  in  Queensland,  but  did  not  apply  at  the  passing 

of  that  Act,  that  Act  cannot  apply  to  them.     [Harding  J.  :  As 

I  said  before,  the  same  observation  would  apply  to  Magna  Charta.] 

If  the  Chief  Justice's  proposition  is  good,  the  mortmain  laws  in 

Whicker  v.  Hume,  which  were  held  not  to  apply  to  the  particular 

circumstances  of  Grenada,  would  apply.     [The  Chief  Justice  : 

They  could  not  apply  here,  because  there  are  no  monasteries  or 

any  great  establishments  eating  up  the  land.     That  evil  went  to 

the  root   of  the  English  Reformation.     People,    as  the  people, 

wanted  to  get  hold  of  the  land  belonging  to  the  monasteries. 

If  general  laws  were  passed  in  England,  and  the  circumstances  of 

the  laws  afterwards  became  applicable  to  the  colonies,  would  not 

9   Geo.   IV.,   c.    83,   also   become   applicable  ?]      I    submit  not. 

[The  Chief  Justice  :    If  I  understand  you  aright,  you  contend 

that  if  the  circumstances  in  New  South  Wales  were  not  applicable 

to  9  Geo.  IV.,  c.  83,  when  passed,  they  cannot  be  applicable  now  ?] 

No.     Several   laws   in   Forsyth's    Cases    on   Constitutional   Law 

have  been  held  not  applicable  to  the  colonies,  amongst  them  even 

penal  Acts.     In  Astley  v.  Fisher,  6  C.B.,  572,  Maule  J.  held  that 

■9  Geo.  IV.,  c.  83,  did  not  import  into  the  colonies  all  English 

laws.     If  any  laws  but  those  applicable  to  the  colony  at  the 

time  they  were  passed  could  be  imported  into  our  code,  it  would 

not  be  possible  to  know  the  law  of  the  land.     [The  Chief  Justice  : 

That  is  the  way  with  all  laws.     The  law  does  not  arise  until  the 

offence  is  committed.]     Yes  ;   but  you  know  what  the  law  is.     If 

6  Geo.  IV.,  c.  129,  can  now  be  revived  and  sprung  upon  us  at  a 

moment's  notice,  we  are  living  in  a  very  risky  state  of  affairs, 

and  the  sooner  the  Court  decides  the  point  the  better.     With 

respect   to   intimidation,   threats   were   used   but   they   did   not 

amount   to   intimidation.     Connor   v.    Kent,   Gibson  v.   Lawson, 

Gurran  v.  Treleaven,  (1891),  2Q.B.  545. 

Conlan  followed. 

The  Chief  Justice  :  This  is  a  rule  calling  upon  the  justices  The  Chief  Justice 
and  Henry  AUis,  to  show  cause  why  an  order  should  not  be  made 
directing  that  the  conviction  or  order  made  by  the  justices  and 
others  at  Blackall,  in  a  certain  complaint,  in  which  one  Allis 
was  complainant,  and  Bilby  was  defendant,  should  not  be  quashed 
on  the  following  grounds  : — That  the  justices  had  no  power  or 
authority  (1)  to  impose  or  order  payment  of  a  fine  ;  (2)  to  impose 
or  order  payment  of  a  fine  with  alternative  imprisonment ;    (3)  to 


The  Chief  Justice 


228  QUEENSLAND  JUSTICE   OP   THE    PEACE, 

BiLBY  u  Hartley  order  the  payment  of  a  sum  of  7s.  8d.  for  costs  ;    (4)  to  order  the 

AND    UTHGBS. 

payment  of  the  sum  of  £15  158.  costs  of  witnesses  travellings 
expenses  ;  (5)  to  order  payment  of  the  fine  of  £10  lOs; ;  (6)  to 
impose  the  penalty  and  imprisonment  ordered  ;  (7)  that  the- 
statute  6  Geo.  IV.,  c.  129,  is  not  in  force  in  the  colony  of 
Queensland  ;  (8)  that  there  was  no  evidence  before  the  justices 
of  intimidation  under  the  lastmentioned  statute.  Well,  upon  the 
question  of  the  various  amounts,  there  is  no  doubt  that  it  is 
conceded  that  the  magistrates  imposed  an  excessive  fine,  which 
might  have  exposed  the  defendant  Bilby  to  excessive  imprison- 
ment ;  because  if  the  statute  under  which  the  complaint  was- 
undoubtedly  laid  is  in  force  in  the  colony,  the  term  of  imprisonment 
is  limited  to  three  months,  whereas  the  fine  imposed  by  the 
magistrates,  if  unpaid,  would  have  subjected  Bilby  to  six  months'^ 
imprisonment ;  as  it  was,  the  Magistrates  kept  the  term  of 
imprisonment  within  the  term  imposed  by  the  statute  6  Geo.  IV., 
but  there  was  undoubtedly  an  excess  in  the  amount  of  the  fine 
imposed.  That  being  conceded,  an  application  was  made  by  the 
Attorney- General,  under  The  Justices  Act,  for  leave  to  reduce  the 
excess  so  as  to  bring  it  within  such  an  amount  as  would  leave  a. 
possible  or  alternative  punishment  of  only  three  months,  and 
so,  in  fact,  impose  the  magistrates'  imposition  of  only  three 
months'  imprisonment.  We  see  no  reason  why  we  should  not 
concede  that  application,  and  reduce  the  penalty  imposed  by  the 
justices  to  £4  19s.  llfd.,  which  will  then  allow  the  order  of  the 
justices  imposing  three  months'  imprisonment  to  be  upheld. 
Of  course  that  includes  everything — both  penalty  and  costs — 
and  reduce  the  whole  to  one  sum  of  £4  19s.  llfd.  That,  as  I 
said,  would  allow  the  order  of  the  justices  to  be  upheld,  if  on  the 
remainder  of  the  case  we  think  the  prosecution  is  sustainable. 
Assuming  that  the  Act  6  Geo.  IV.,  c.  129,  under  which  the 
prosecution  was  begun,  continued,  and  finished — assuming  that 
to  be  the  law  for  the  moment — I  will  first  mention  the  question 
of  the  substantial  merits  of  the  case.  The  facts  are  too  disgusting 
to  be  recited  from  the  bench.  The  question  of  intimidation  arises 
under  the  s.  3  of  6  Geo.  IV.  It  is  provided  under  this  particular 
section — 

"that  from  and  after  the  passing  of  this  Act,  if  any  person, 
shall  by  violence  to  the  person  or  property,  or  by  threats 
or  intimidation,  or  by  molesting  or  in  any  way  obstructing 
another,  force  or  endeavour  to  force  any  journeyman  manu- 
facturer, workman  or  other  person  hired  or  employed  in. 
any    manufacture,    trade,     or     business,    to    depart    from    his 


CEIMINAL  EEPORTS,  1860-1907. 


229 


hiringj  or  prevent  or  endeavour  to  prevent  any  journey-  Bilby  v.  Habtlby 
man  manufacturer,  workman,  or  other  person  not  being  hired  *''"  ^™'^°^' 
or  employed  from  hiring  himseK  to,  or  accepting  work  or  employ-  The  Chief  Justice 
ment  from  any  person  or  persons  ;  or  if  any  person  shall  use  or 
■employ  violence  to  the  person  or  property  of  another,  or  threats 
•or  intimidation,  or  shall  molest  or  in  any  way  obstruct  another 
ior  the  purpose  of  forcing,  or  inducing  such  person  to  belong  to 
any  club  or  association,  or  to  contribute  to  any  common  fund, 
or  to  pay  any  fine  or  penalty,  or  on  account  of  his  not  belonging 
to  any  particular  club  or  association,  or  not  having  contributed 
or  having  refused  to  contribute  to  any  common  fund,  or  to  pay 
any  fine  or  penalty,  or  on  account  of  his  not  having  complied 
or  of  his  refusing  to  comply  with  any  rules,  orders,  resolutions,  or 
regulations  made  to  obtain  an  advance  or  to  reduce  the  rate  of 
wages,  or  to  lessen  or  alter  the  hours  of  working,  or  to  decrease  or 
alter  the  quantity  of  work,  or  to  regulate  the  mode  of  carrying 
on  any  manufacture,  trade,  or  business,  or  the  management 
thereof  ;  or  if  any  person  shall  by  violence  to  the  person  or  pro- 
perty of  another,  or  by  threats  or  intimidation,  or  by  molesting 
■or  in  any  way  obstructing  another,  force,  or  endeavour  to  force 
aiiy  manufacturer  or  person  carrying  on  any  trade  or  business  to 
make  any  alteration  in  his  mode  of  regulating,  managing,  conduct- 
ing, or  carrying  on  such  manufacture,  trade,  or  business,  or  to 
limit  the  number  of  his  apprentices,  or  the  number  or  description 
of  his  journeyman  workmen,  or  servants  ;  every  person  so  offering, 
■or  aiding,  abetting,  or  assisting  therein,  being  convicted  thereof 
in  manner  hereinafter  mentioned,  shall  be  imprisoned  only,  or 
shall  or  may  be  imprisoned  and  kept  to  hard  labour,  for  any 
time  not  exceeding  three  calendar  months." 

I  think,  the  information  was  that  the  threats  or  intimidation  were 
used  on  account  of  Henry  AUis  the  complainant  not  having 
■contributed  to  a  common  fund.  It  appears  that  a  common  fund 
iad  been  formed  for  the  purpose  of  making  a  provision  or  in  some 
way  providing  for  the  comfort  of  some  men  who  had  been  com- 
mitted on  a  criminal  charge.  We  can  hardly  fail  to  see  that 
these  troubles  arose  out  of  the  recent  unhappy  disturbances 
between  labour  and  capital  as  they  are  repeatedly  called.  We 
sit  here  to  take  no  part  on  either  side,  whichever  way  our  sympa- 
thies may  lie  with  one  party  or  the  other.  It  is  not  of  course 
for  us  to  make -any  display  of  sympathy,  nor  to  be  influenced 
by  any  in  our  determination  on  what  is  really  presented  to  the 
Court  as  a  dry  question  of  law.  Our  duty  is  limited  entirely  to 
that.  Whichever  way  our  decision  goes,  it  implies  sympathy 
with  neither  one  party  nor  the  other  in  respect  to  their  relations 
one  to  the  other,  as  capital  or  as  labour.  I  will  deal  with  the 
questions  arising  out  of  the  trial,  on  the  supposition  that  this 
statute  of  6  Geo.  IV.,  c.   129,  is  in  force  in  the  colony.     The 


280  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

UiLBY  V.  Hartley  trouble  appears  to  have  arisen  in  consequence  of  Allis  not  having 
AKD  Othebs.       contributed,  or  refusing  to  contribute,  6s.  lOd.  to  a  common  fund 

The  Chief  Justice  — a  fund  which  was  really  got  up  to  give  some  help  to  men  who- 
are  now  in  gaol  on  a  criminal  charge.  Looking  at  the  language 
on  the  depositions,  which  is  much  too  foul  to  pass  through  the 
mouth  even  of  the  Judge,  whose  position  sometimes  necessitates 
that  he  should  recite  such  language,  I  think  it  is  not  necessary 
for  me  to  recite  it  now.  There  is  one  part  sufficient,  without 
touching  upon  the  fouler  part,  to  sustain  the  charge  (supposing 
the  statute  6  Geo.  IV.  to  be  in  force)  that  is  :  that  the  man 
was  threatened  if  he  did  not  contribute  this  sum  of  money  he 
would  be  "  chucked  "  out.  We  know  very  well  that  that  means 
he  would  be  thrown  out  and  possibly  injured  if  he  did  not  submit 
to  this  dictation.  Well,  I  think,  that  would  be  quite  sufficient 
in  itself  to  inspire  in  a  man  of  reasonable  strength  of  mind  some 
degree  of  fear  or  discomfort,  or  a  sense  of  an  attempt  being  made 
to  coerce  him  to  do  that  against  which  his  mind  or  his  reason 
might  rebel.  I  think  it  is  perfectly  clear  that,  upon  the  facts  of 
the  case,  there  was  sufficient  material  to  justify  the  magistrate  in- 
coming to  the  conclusion  that  intimidation  had  been  given. 
That  being  so,  on  the  merits,  the  rule  would  have  to  be  dismissed, 
but  there  is  a  further  question  of  importance  in  the  case,  and  I 
need  not,  perhaps,  hesitate  to  say  that  a  very  great  deal  of  clamour 
has  been  raised  with  regard  to  the  character  of  the  Act  under 
which  this  prosecution  was  begun  and  ended.  This  is  the  Act 
6  Geo.  IV.,  c.  129.  Of  course,  if  that  Act  is  not  in  force  in  the 
colony  the  whole  prosecution  had  no  foundation,  and  the  rule 
would  have  to  be  made  absolute.  Without  going  into  the  earUer 
Acts  applicable  to  New  South  Wales,  which,  I  think,  it  would  be 
quite  unnecessary  for  my  part  to  go  into,  I  think  it  depends — 
the  operation  of  the  question  whether  this  Act  is  in  force  in  this- 
colony  depends — upon  two  things.  First,  what  is  the  meaning  of 
9  Geo.  IV.,  c.  83  ?  What  law  did  it  import  into  this  colony,, 
and  is  there  anything  in  6  Geo.  IV.  that  is  repugnant  to  the  existing 
state  of  circumstances  in  the  colony,  or  was  so  when  9  Geo.  IV.. 
was  passed,  that  it  was  impossible  to  show  that  the  legislature 
could  contemplate  the  importation  of  6  Geo.  IV.  into  the  law  of 
New  South  Wales  ?     9  Geo.  IV.  provides — 

"  Provided  also,  and  be  it  further  enacted,  that  all  laws  and 
statutes  in  force  within  the  realm  of  England  at  the  time  of  the 
passing  of  this  Act  (not  being  inconsistent  herewith,  or  with  any 
charter  or  letters  patent,  or  order  in  council  which  may  be  issued 
in  pursuance  hereof)  shall  be  applied  in  the  administration  of 


CEIMINAL  EEPORTS,   1860-1907.  231 

justice  in  the  Courts  of  New  South  Wales  and  Van  Die  man's  Bilby  v.  Habtlby 
Land  respectively,  as  far  as  the  same  can  be  applied  within  the      ^'^^  Othbrs. 
said  colonies."  The  Chief  Justice 

and  so  on.  Now,  many  years  ago,  a  very  eminent  Lord  Chancellor 
hinted  that  the  words  "  applied  to  the  administration  of  justice," 
might  possibly  allude  to  the  appUcation  of  this  statute  to  the 
practice  of  the  Courts,  but  would  merely  import  into  New  South 
Wales  the  practice  of  the  English  Courts.  Well,  my  understanding 
— and  I  speak  with  deference  in  criticising  so  eminent  a  Judge — 
my  understanding  of  the  words  "  administration  of  justice," 
implies  that  not  only  the  practice  of  the  law,  but  the  substantive 
law,  and  the  practice  is  intended  to  apply.  I  think,  therefore, 
that  these  words  imported  not  merely  the  practice  of  the  Courts, 
but  the  actual  substantive  law  of  England,  so  far  as  it  applied  to 
the  circumstances  of  the  colony.  That  means,  to  my  mind, 
that  if  the  circumstances  of  the  colony  are  such,  or  the 
circumstances  of  a  particular  case  are  such  that  the  law 
caimot  be  appUed,  it  obviously  should  not  be  applied.  In  that 
case,  the  law  of  England — the  substantive  as  well  as  the  practical 
law — would  cease  to  have  any  effect  with  respect  to  the  particular 
case  within  the  colony.  At  all  events,  whatever  the  circumstances 
of  the  colony  might  be  at  the  time  of  the  passing  of  9  Geo.  IV., 
if  the  Act  6  Geo.  IV.  is  not  inconsistent  with  those  circumstances, 
and  if  it  could  be  appUed,  then  probably  it  must  be  applied  in  the 
administration  of  justice.  I  am  inclined  to  think  myself,  and 
probably  it  is  important  in  connection  with  this  case,  that 
although  the  circumstances  existing  at  the  passing  of  9  Geo.  IV. 
might  not  make  6  Geo.  IV.  appUcable,  or  it  might  be  inappHcable 
to  the  existing  circumstances,  still,  if  in  the  progress  of  Hfe  and 
society  circumstances  so  altered  within  the  colony  that  it  would 
apply,  or  it  might  be  appUcable,  then,  I  think,  it  would  have  to 
be  applied,  because  there  are  many  things  which  legislatures  do  not 
legislate  for  immediately.  They  legislate  not  only  for  immediately 
existing  evils,  but  for  prospective  evils  that  are  Ukely  to  arise. 
Now  there  is  one  of  the  statutes  which  have  been  referred  to, 
which  uses  the  words  "  to  prevent  certain  misconstructions."  If 
these  misconstructions  did  not  exist  in  the  colony  of  New  South 
Wales  after  the  passing  of  that  Act,  and  have  not  arisen,  the  Act 
would  of  course  apply.  In  fact,  a  statute  is  passed  to-day,  but  it 
speaks  for  all  time  until  the  legislature  sees  fit  to  repeal  it,  change 
it,  or  modify  it.  •  A  statute  is  not  passed  for  a  day  ;  it  is  passed 
for  all  time  until  the  legislature  sees  fit  in  its  wisdom  or  in  its 


232  QUEENSLAND  JUSTICE  OP  THE  PEACE. 

BiLBY  V.  Haetley  folly,  to  repeal  it,  to  modify  it,  or  to  re-enact  something  else  in 
AND  Othehs.       .^^  ^lo^QQ^     So  long  as  it  is  in  the  Statute  Book,  if  the  circumstances 

The  Chief  Juetiee  to  which  it  might  apply  or  ought  to  apply  arises,  it  is  our  duty, 
sitting  as  a  Court  here,  to  apply  it.  I  think  the  question  then  is  : 
Is  there  anything  in  6  Geo.  IV.  so  absolutely  inconsistent  with  the 
circumstances  existing  at  the  present  time,  that  its  provisions 
cannot  be  applied  in  the  administration  of  justice  ?  On  the  face 
of  it,  looking  at  this  Act — which  seems  to  have  repealed  all  the 
existing  Acts  affecting  labour  combinations,  and  to  have  passed 
one  general  statute — I  may  say  that  I  cannot  resist  the  conclusion 
that,  at  aU  events,  in  respect  to  this  particular  offence,  there  is 
nothing  in  the  statute  inconsistent  with  its  application  in  this 
colony.  On  the  contrary,  it  seems  to  me  to  apply  to  the  circum- 
stances of  this  particular  case.  I  may  say  in  dealing  with  statutes 
brought  into  force  by  the  operation  of  9  Geo.  IV.,  c.  83,  some 
portion  of  the  statute  may  not  apply,  and  some  other  portion 
may  apply.  Time  or  change  of  circumstances  may  sweep  away 
the  operation  of  a  part  of  the  statute,  or  time  may  bring 
into  operation  other  parts,  or  may  retain  other  portions  of  the 
statute  in  force,  notwithstanding  the  lapse  of  time.  Therefore, 
I  am  not  prepared  to  say  that  the  statute  obviously  is  not  intended 
to  apply  to  the  colony.  The  mere  fact  that  you  can  pick  out 
from  the  centre  some  few  words  which  would  have  laid  the 
foundation  for  prosecutions  of  this  sort,  would  probably  not  be 
sufficient  to  justify  them,  but  looking  at  the  whole  thing  there  is 
nothing  in  this  Act,  in  its  object,  or  in  its  character,  that  is  in  any 
way  inconsistent  with  the  appUcation  of  some  portion  of  it, 
whilst  in  regard  to  other  portions,  one  might  disregard  its  appUca- 
tion. There  is  nothing  on  the  face  of  it,  that  I  can  see,  that  would 
make  6  Geo.  IV.  inapplicable.  Therefore,  by  the  operation  of 
9  Geo.  IV.,  c.  83,  I  think  it  has  been  brought  into  force  in  the 
colony,  and  it  remains  in  force,  and  that  the  prosecution  was  well 
founded.  I  think,  therefore,  there  ought  to  be  reduction  with 
regard  to  the  money,  reduction  of  the  excess,  and  the  conviction 
ought  to  be  upheld.  On  the  two  questions  whether  the  sub- 
stantive offence  was  proved,  and  whether  that  offence  was  against 
the  law  of  the  colony,  I  think  they  are  settled  by  the  operation  of 
these  two  statutes  here.  With  regard  to  the  question  of  excess, 
I  think  the  complainant  ought  to  have  his  costs.  It  is  qiiite 
clear  he  was  compelled  to  come  here,  and  that  on  the  other  part 
of  the  case  the  Crown  ought  to  have  their  costs  ;  so  that  there  will 
be  two  sets  of  costs. 


CRIMINAL  REPORTS,  1860-1907. 


233 


Harding  J.  :    I  agree  in  great  part  with  the  judgraent  of  ^^^^^ «.  Hartley 

mi  /^i    •tT't-rti*  1  AND    UTH£.nSt 

ihe  Ohiei  Justice,  but  I  defer  expressing  my  opinion  as  to  the  

application  of  English  law  to  this  matter.     I  think  the  statute       Harding  J. 

9  Geo.  IV.,  passed  a  mass  of  laws  for  New  South  Wales,  which  were 

to  be  extracted  from  the  larger  mass  of  the  laws  of  Great  Britain 

and  Ireland,  so  far  as  they  were  appUcable  to  the  colony.   Secondly, 

I  think  that  the  laws  that  could  be  taken  out  from  the  Statute 

Book  and  the  Common  Law  at  the  time  of  the  passing  of  that 

Act,  are  and  were  at  once,  and  have  ever  since  been  the  law  of 

New  South  Wales.     I  don't  think  that  if  any  part  of  the  statute 

law  of  England  was  not  at  that  time  brought  in  by  9  Geo.  IV., 

and  at  once  became  appUcable  if  the  cause  arose,  that  it,  so  to 

speak,  lay  dormant  and  became  law  at  a  future  time.     I  would 

put  it  this  way  :    that  by  9  Geo.  IV.  all  EngUsh  law  applicable 

to  the  colony  at  once  attached,  and  although  the  occasion  for  the 

use  of  it  might  not  arise  for  ten  years,  twenty  years,  or  fifty  years, 

still  it  was  there  as  the  sanction  for  the  ^ionduct  of  the  people 

thereafter.     I  consider  that  the  moment  9  Geo.  IV.  was  passed 

it  became  part  of  the  law,  and  has  ever  since  remained  law  as  a 

sanction  for  the  good  conduct  of  the  people.     The  rule  must  be 

discharged  in  the  terms  mentioned  by  The  Chief  Justice. 

Real  J.  :   I  have  nothing  to  add  to  the  judgment  of  The  Chief  Real  J. 

Justice.  I  desire  to  offer  no  opinion  on  the  question  raised  by  His 
Honor,  because  I  have  not  sufficiently  considered  it.  To  my 
view  the  circumstances  of  the  colony  at  the  time  of  the  passing 
of  9  Geo.  IV.  was  clearly  such  as  would  render  6  Geo.  IV.  capable 
of  being  applied.  Consequently,  the  effect  of  the  statute  9  Geo. 
IV.,  would  be  such  as  to  apply  that  law.  It  was  not  sufficiently 
argued,  and  I  have  not  sufficiently  considered  it  to  offer  any 
opinion  on  the  point  thrown  out  by  The  Chief  Justice  as  to  whether, 
if  the  circumstances  of  the  colony  had  been  such  that  6  Geo.  IV. 
was  not  applicable  at  the  year  of  the  passing  of  9  Geo.  IV.,  an 
alteration  in  them  made  it  applicable,  and  we  could  hold  it  to  be 
applicable.  It  was  not  necessary  to  consider  that  question  in 
this  case,  and  it  has  not  been  argued  and  I  have  not  considered 
it  sufficient  to  express  an  opinion.  In  every  other  respect  I 
concur  in  the  opinions  expressed  in  the  judgment  of  The  Chief 
Justice. 

LiLLEY  C.J.  :  The  excess  is  to  be  reduced  with  costs.     The  rest       Lilley  C  J, 
of  the  rule  is  to  be  discharged  without  costs.     I  agree  that  there 
was  not  sufficient  time  to   consider  the  point  I  raised.     With 


234  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

BiLBY  1-.  Hakxley  regard  to  that  it  is  a  very  fine  point,  and  my  opinion,  no  doubt, 

AKD    OtHEBS. 


Lilley  C.J. 


on  that,  will  be  taken  as  academical. 

Solicitor  for  appellant :   A.  J .  Thynne. 
Solicitor  for  repondents :  Crown  Solicitor. 


[Full  Cotjkt.] 
RAWLINGS  V.  HALY  AND  ANOTHER. 

1 4  g.L.J.  160. — Note.— 29  Vic,  No.  5,  s.  26,  is  repealed,  see  now  ss.  22,  469,  and 
^  476  of^Criminal^Code.S  See>lso;^  Black  v.  Turner  (6  Q.L.J.  153,  post),  Keable 
l^^  V.  Clancey  (3  Q.J.P.R.  206,  1909  S.B.Q.  345).] 

1892.  Injuries  to  Property  Act  of  1865  (29  Vic,  No.  5),  s.  2Q—Bona  fide 

ilai'cJi.  claim  of  title — Jurisdiction  of  justices. 

itZte|/  G.J.  jj  agreed  to  sell  land  to  C.     C.  paid  part  of  the  purchase  money.    About  three  ' 

Real  J.  weeks  afterwards,  but  before  the  whole  of  the  purchase  money  had  been  paid,  R. 

began  to  remove  the  wire  from  the  fence  surrounding  the  land  agreed  to  be  sold. 

C.  laid  an  information  against  R.,  under  s.  29  of  The  Injuries  to  Property  Act  of 
1865.  It  appeared  from  the  evidence  that  there  was  a  dispute  as  to  certain  of 
the  terms  of  sale.  C.  said  K.  was  entitled  to  take  away  a  crop  of  potatoes.  R. 
said  he  was  entitled  to  take  away  the  improvements,  and  that  he  removed  the 
wire  under  the  bona  fide  belief  that  the  property  was  his,  and  that  he  was  entitled 
to  do  so. 

R.  was  convicted  and  ordered  to  pay  a  fine  of  £5,  with  £7  for  damages,  and 
£3  3s.  for  costs,  or  in  default  of  payment,  to  be  imprisoned  for  three  months. 

Held,  that  this  was  a  bona  fide  claim  of  right,  and  that  R.  should  be  relieved 
of  the  order  for  fine  and  imprisonment. 

Motion,  made  at  the  February  Sittings  of  the  Full  Court, 
to  make  absolute  an  order  calhng  upon  Charles  Richard  Haly, 
Pohce  Magistrate  at  Dalby,  and  James  Clarke  of  Dalby,  to  show 
cause  why  the  conviction  of  William  Rawlings,  under  the  26th 
section  of  The  Injuries  to  Property  Act  of  1865  (29  Vic,  No.  5), 
should  not  be  quashed  on  the  grounds  :  (1)  That  there  was  no 
evidence  to  support  the  conviction.  (2)  That  the  evidence  showed 
that  the  defendant  acted  under  a  bona  fide  claim  of  right.  (3) 
That  the  said  Charles  Richard  Haly  had  no  jurisdiction  to  try 
or  decide  the  matter  of  the  said  complaint,  as  defendant  raised  a 
bona  fide  claim  of  title  in  himself  as  against  the  complainant  to 
the  fence  alleged  to  have  been  destroyed,  and  to  the  land  upon 
which  the  same  was  situate,  and  the  conviction  involved  a  decision 
as  to  such  title. 


CRIMINAL   EEPORTS,   1860-1907.  235 

Perske,  for  appellant,  moved  the  rule  absolute.  Hawlings  v.  Hali 

AND  ANOTHEU. 

Wilson,  for  respondent  Clarke,  appeared  to  show  cause.  

Wilson  took  a  preliminary  objection  that  defendant  had  not 
exhausted  all  his  remedies.  The  conviction  was  under  s.  26  of 
The  Injuries  to  Property  Act,  and  remedy  was  by  way  of  appeal  to 
the  District  Court,  as  provided  by  s.  71.  On  the  merits,  he 
contended  the  question  of  title  was  for  the  justices  as  a  matter 
of  fact.  The  justices  have  decided  that  it  is  not  a  bona  fide  claim 
of  right,  and  the  Court  AviU  not  interfere.  He  referred  to  Reg.  v. 
Walker,  4  Vic.  Rep.,  (L.)  452  ;  Reg.  v.  Blackburn,  32  L.J.  (M.C.)  41, 
46  ;  Paley  v.  Birch,  16  Law  Times  Rep.  410  ;  and  Stone  on  Justices 
of  the  Peace,  p.  72. 

Perske  referred  to  Paley  on  Convictions,  p.  144.  "  Whenever 
the  title  to  property  is  in  question,  the  exercise  of  a  summary 
jurisdiction  by  justices  of  the  peace  is  ousted."  He  quoted  in 
support  Reg.  v.  Burnaby,  2  Ld.  Ray.,  900  ;  Reg.  v.  Huntsworth, 
33  L.J.  (M.C.)  131  ;    and  Reg.  v.  Cridland,  27  L.J.  (M.C.)  31. 

Decision  was  reserved ;  prisoner  meanwhile  being  allowed 
out  on  bail,  himself  in  £40,  and  two  sureties  in  £20  each,  or  one 
surety  in  £40,  with  condition  that  prisoner  surrender  himself 
into  custody  if  rule  discharged.  Recognizance  to  be  taken  before 
any  justice  of  the  peace. 

At  the  March  Sittings  of  the  Full  Court,  the  following  judgment 
was  delivered  : — 

LiLLEY  C.J.  :  This  is  an  appUcation  to  quash  a  conviction  Lilley  C.J. 
against  one  WiUiam  Rawlings,  under  the  statute  against  the 
maUcious  destruction  of  property.  The  charge  against  him  was 
that  he  destroyed  maliciously  a  quantity  of  fencing,  the  property 
of  the  complainant,  one  James  Clarke,  and  the  Magistrates 
convicted  him,  and  ordered  him  to  be  imprisoned,  in  default  of 
payment  of  a  fine  of  £10,  for  three  months.  He  was  imprisoned, 
and  at  last  Court  the  Court  gave  him  bail.  Therefore,  if  he  has 
suffered,  it  has  been  from  his  own  obstinacy,  not  from  the  action 
of  the  Courts.  The  ground  on  which  the  rule  is  sought — and  it 
was  raised  at  the  trial — is,  that  Clarke  alleged  that  he  had  a  bona 
fide  claim  of  right.  The  circumstances  are  somewhat  remarkable. 
It  appears  that  the  fence  which  Clarke  was  charged  with  destroy- 
ing stood  between  two  properties  which  belonged  to  the  defendant. 
There  was  a  dispute  whether  the  fence  stood  upon  his  own  land  or 
upon  the  other  piece  of  land  which  he  had  agreed  to  sell  to  the 


236  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

Bawlings  u.  Halt  complainant  Clarke.     It  appears  that  there  had  been  transactions 

■     between  them  of  this  kind.     There  is  no  doubt  that  there  was 

Lilley  C.J.  a  contract  in  which  the  defendant  agreed  to  sell  to  Clarke  a  piece 
of  land  adjoining  his  own.  Part  of  the  purchase  money  was 
paid  to  E-awlings,  the  defendant,  and  then  there  was  a  dispute 
as  to  certain  of  the  terms.  Clarke  said  he  was  entitled  to  take 
away  a  crop  of  potatoes  from  the  allotment  which  he  had  sold. 
The  defendant  said  he  was  entitled  to  take  away  the  improve- 
ments. It  is  clear  that  on  the  day  for  the  completion  of  the 
contract,  by  the  payment  of  the  full  amount,  the  purchaser  Clarke 
was  a  defaulter.  Then  Rawlings  began  to  remove  the  wire  from 
the  fence,  and  that  is  the  offence  with  which  he  was  charged  before 
the  Magistrates.  He  set  up  the  claim  that  he  was  entitled  to 
take  it  away  as  part  of  the  improvements,  and  the  evidence 
was  taken  on  which  the  Magistrate  decided  that  it  was  not  a 
bona  fide  claim  of  right.  Beyond  the  fact  of  his  attempt  to  remove 
the  fence,  there  was  no  evidence  of  any  want  of  bona  fides,  and 
on  the  other  hand  the  admitted  matters — the  non-payment 
of  the  purchase  money,  the  right  to  move  a  crop  of  potatoes, 
and  other  little  circumstances — all  went  to  show  that  there  was 
between  the  parties  matter  of  dispute,  and  the  question  is,  if  I 
may  use  a  familiar  term,  was  this  a  mere  bogus  assertion,  or  was 
it  a  bona  fide  claim  and  assertion  of  his  right  to  the  improvements  ? 
What  object  could  he  have  ?  What  could  he  secure  by  these 
proceedings  ?  If  the  contract  was  "  off "  entirely  by  reason  of 
Clarke's  default,  there  was  nothing  to  be  gained  by  the  removal 
of  the  fence.  If,  on  the  other  hand,  the  property  was  still  within 
the  grasp  of  Clarke,  and  he  could  assert  his  right  under  the  con- 
tract under  which  he  was  admittedly  a.  defaulter,  he  had  half  the 
purchase  money,  and  might  have  recouped  himself  for  any  injury 
in  consequence  of  Rawlings  taking  the  wire  from  the  fences. 
Upon  the  whole  we  think  it  ought  to  have  been  held  by  the  Magis 
trate  there  was  a  bona  fide  claim  of  right,  and  that  this  man  should 
be  relieved  of  the  order  for  fine  and  imprisonment.  The  con- 
viction will,  therefore,  be  quashed,  vnth  costs  against  Clarke. 

Harding  J.  Haeding  J.  and  Real  J.  concurred. 

Eeal.L 

Rule  absolute  accordingly,  with  costs. 

Sohcitor  for  appellant :    E.  Winter. 

Solicitors    for     respondents :        Wilson,     Newman-Wilson     <fe 
Hemming. 


CRIMINAL  REPORTS,  1860-1907. 


237 


[Brisbane  Criminal  Sittings.] 
REGINA  V.  HORROCKS. 

[4  Q.L.J.  218.— Note.— Sec.  64  of  31  Vic,  No.  13,  is  repealed,  see  now  s.  10  of 
Criminal  Law  Amendment  Act  of  1894  (58  Vic,  No.  23).  which  is  not  identical 
with  the  repealed  section.] 

Criminal    law — Evidence — Untrue    representation — Evidence    and  1892. 

Discovery  Act  of  1867  (31   Vic,  No.   13),  s.  64:— Burden  of      ^^th^^ust. 

proof.  Harding  J. 


H.  was  arrested  on  a  charge  of  murder.  He  asked  the  arresting  constable,  B., 
whether  human  blood  could  be  distinguished  from  any  other  blood.  B.  said 
"  Yes,  it  could." 

Held,  that  the  representation  was  untrue,  and  any  confession  or  statement 
made  by  the  prisoner  subsequent  to  such  representation  could  not  be  admitted 
in  evidence  against  the  prisoner.  A  detective  untruly  told  the  prisoner  the 
nvurderer  could  be  identified. 

Held,  that  no  conversation  with  the  prisoner  subsequent  to  such  representation 
could  be  received  under  s.  64  of  The  Evidence  and  Discovery  Act.  The  onus  is 
on  the  Crown  of  rebutting  the  presumption  that  the  subsequent  statements  of 
the  prisoner  were  induced  by  the  representation. 

Information  against  Francis  C.  Horrocks  for  murder. 

Power  prosecuted  for  the  Crown.  Lilley  and  GonlanYSox  the 
prisoner. 

On  the  first  day  of  the  trial  Detective  Grimshaw  gave  a  con- 
versation with  the  prisoner,  which  was  received.  He  then 
deposed  that  he  told  the  prisoner  "  the  murderer  can  be  identified." 
This  being  an  untrue  representation,  further  conversation  was 
rejected.  On  a  later  day  of  the  trial,  Boyle,  the  arresting  constable, 
deposed  that,  before  the  arrival  of  Detective  Grimshaw,  the 
prisoner  and  he  had  a  conversation  ;  that  the  prisoner  asked 
him,  "  Can  they  distinguish  human  blood  from  any  other  blood  ?  " 
and  he  answered  "  Yefe." 

Lilley  objected  to  the  reception  of  any  subsequent  conversation 
on  the  ground  that  this  was  an  untrue  representation. 

Harding  J.  upheld  the  objection  pending  an  answer  from  a 
scientific  witness. 


Harding  J. 


288 


QUEENSLAND  JUSTICE  OP  THE  PEACE. 


Begina  v. 
bobbocks. 


Harding  J. 


Robert  Mar,  the  Government  Analyst,  deposed  in  answer  to 
a  question  from  Harding  J.  :  "If  the  question  as  asked — Can 
they  distinguish  human  blood  from  any  other  blood  '!  -yes,  is 
not  a  true  answer  according  to  the  present  state  of  science."' 

It  was  in  evidence  that  Boyle's  untrue  representation  preceded 
the  statements  of  the  former  to  Detective  Grimshaw. 

lAlley  thereupon  moved  that  so  much  of  the  evidence  already 
given  as  went  to  prove  a  confession  made  by  the  prisoner  after 
the  above  statement  made  by  Boyle,  should  be  struck  out 
from  the  Judge's  notes  on  the  grounds  that  there  was  a  false 
statement  amounting  to  a  representation,  and  that,  therefore, 
any  confession  after  that  must  be  deemed  to  have  been  induced 
by  it,  unless  evidence  to  the  contrary  existed,  and  there  was  no 
evidence.     Evidence  and  Discovery  Act,  s.  64. 

Power  :  There  is  nothing  to  show  that  the  subsequent  state- 
ments were  induced  by  Boyle's  statement. 

Harding  J.  :  It  would  be  well  if  all  constables  and  others  in 
control  of  a  prisoner  would  give  the  statutory  caution  to  him 
upon  taking  him  over  from  another's  charge.  This  is  especially 
necessary  here,  as  s.  64  of  The  Evidence  and  Discovery  Act  is 
peculiar  to  Queensland.  I  hold  that  such  evidence  must  be 
struck  out  as  occurring  subsequent  to  an  untrue  representation, 
and  that  the  onus  is  thrown  on  the  Crown  of  rebutting  the  pre- 
sumption that  the  subsequent  statements  of  the  prisoner  were 
induced  by  the  representation. 

Solicitor  for  prisoner  :    E.  W.  Goertz. 


[Brisbane  Criminal  Sittings.] 
REGINA  V.  FRANZ. 


]892. 
1st  September. 

Harding  J. 


[4  Q.L.J.  219.— Note.— 50  Vic,  No.  14,  s.  3,  is  repealed,  see  now  s.  656  of  Criminal 

Code.] 

The  Offenders  Probation  Act  of  1886  (50  Vic,  No.  14),  s.  3— Two 
informations  presented  simultaneously — Previous  conviction. 

Two  informations  were  presented  against  F.  for  cattle  stealing.  F.  pleaded  guilty 
to  both,  and  asked  the  extension  of  The  Offeiiders  Probation  Act.     He  was  sentenced 


CRIMINAL  REPORTS,  1860-1907. 


239 


to  eighteen  months'  hard  labour  on  each  information,  the  sentence  being  bus-    Eegi.na  u.  Fbanz. 
pended  on  the  first. 

Held,  that  as  he  was  convicted  under  the  first  charge,  the  benefit  of  the  Act 
could  not  be  extended  to  the  offence  6ontained  in  the  second  information. 

Information  against  Franz  for  cattle  stealing. 

Power  prosecuted  ;    Rutledge,  for  prisoner. 

Two  informations  were  presented  against  the  prisoner  for 
cattle  stealing.     He  pleaded  guilty  to  both. 

Rutledge  called  evidence  of  character  and  asked  that  the 
prisoner  might  have  the  benefit  of  The  Offenders  Probation  Act. 
The  prisoner  had  not  been  previously  convicted. 

Harding  J.  :  Here  are  two  informations.  If  he  is  sentenced 
on  the  first  he  is  convicted,  and  how  can  I  extend  the  benefit  of 
that  Act  to  him  on  the  second.  Sentence — eighteen  months' 
imprisonment  with  hard  labour  on  the  first  information,  to  be 
suspended  upon  prisoner  entering  into  his  own  recognizance  in 
£80  before  a  Justice  of  the  Peace,  under  the  terms  of  The  Offenders 
Probation  Act ;  eighteen  months'  imprisonment  with  hard  labour 
upon  the  second  information. 

Solicitors  for  prisoner  :    Atthow,  Bell  <&  Stumm. 


Harding  J 


[Fttll  Court.] 
REGINA  V.  DUNCAN. 


[4  Q.L.J.  219. — Note.— 29  Vic,  No.  6,  s.  77,  is  repealed,  see  now  ss.  398,  S75,  and 
581  of  Criminal  Code.  As  to  time  at  which  point  may  be  raised,  see  s.  668 
of  Criminal  Code.    Case  referred  to  in  R.  v.  Hamilton  (9  Q.L.J.  251,  post).] 

Crown   case   reserved — Embezzlement — Larceny— General   verdict — 
29  Vic,  No.  6,  s.  77. 

A  prisoner  was  charged  with  embezzlement,  the  facts  showed  a  case  of  larceny, 
the  jury  brought  in  «,  general  verdict  of  guilty,  and  the  prisoner  was  sentenced ; 
but  the  sentence  was  suspended  at  the  request  of  the  prisoner's  counsel  to  reserve 
the  question. 


1893. 
September. 

LUley  Q.J. 
Harding  J. 
Cooper  J. 
Chubb  J. 
Real  J. 


240  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

Eegina  v.  Duncan       Edd,  that  the  qviestion  might  be  raised  at  any  time  before  sentence,  that  the 

conviction  must  be  reversed,  the  judgment  vacated,  and  bail  released. 

Beg.  V.  Gorbutt,  Dears  &  B.  168,  followed. 

Ceown  Case  Reserved,  stated  by  Mr.  District  Court  Judge 
Noel. 

The  prisoner  was  charged  at  Townsville  on  an  information  for 
embezzlement.  The  Judge  directed  a  case  of  larceny.  The  jury 
brought  in  a  general  verdict  of  guilty. 

Macnaughton,  for  prisoner,  submitted  the  proceedings  should 
be  quashed.  The  prisoner  was  sentenced,  but  the  sentence  sus- 
pended pending  the  decision  of  the  question  raised  by  Mr. 
Macnaughton. 

Power,  for  the  Crown,  referred  to  s.  77  of  The  Larceny  Act  of 
1865,  where,  on  an  information  for  embezzlement,  a  prisoner  may 
be  found  guilty  of  simple  larceny,  or  larceny  as  a  servant, 
[LiLLEY  C.J.  :  That  means  a  special  verdict  is  required.]  There 
is  a  similar  case,  Reg.  v.  Gorbutt,  26  L.J.  (M.C.)  47.  The  only 
question  is  whether  the  objection  was  too  late.  [Real  J.  :  How 
was  it  too  late  ?  It  could  not  have  been  made  before  the  verdict.] 
The  prisoner's  counsel  might  have  asked  the  Judge  to  so  direct  the 
jury. 

Harding  J.  :  We  have  decided  that  a  point  may  be  taken  at 
any  time  during  the  trial,  in  Reg.  v.  Pieremont,  2  Q.L.J.  95,  so  long 
as  the  prisoner  has  not  been  removed. 

Lilley,  for  prisoner,  was  not  called  upon. 

Lilley  C.J.  LiLLEY  C.J.  :    Verdict  was  tantamount  to  finding  the  prisoner 

guilty  of  embezzlement.     The  facts  amounted  to  larceny.    The 

conviction  must  be  reversed,  the  judgment  vacated,  the  prisoner 

discharged,  if  in  custody,  otherwise  the  bail  to  be  released. 
HardinR  J. 
Cooper  J.  Harding,  Coopeb,  Chubb,  and  Real  JJ.  concurred. 

Chubb  J. 

Eeal  J.  Solicitors  for  prisoner  :  Powers  &  Robinson,  agents  for  O'Malley, 

Townsville. 


CRIMINAL  REPOETS,   1860-1907.  241 

[Full  Court.] 
Be  The  Extradition  Acts,  1870  and  1873,  In  re  CARLO  PEDRO. 

[5  Q.I1.J.  22. — Note. — §ee  also  Commonwealth  Extradition  Act  (No.  12  of  1903). 
Case  followed  in  R.  v.  Friday,  11  Q.L.J.  26,  post.] 

Extradition — Habeas  Corpus — 33  and  34  Vict.,  c.  52,  ss.  9,  10,  11 —  1893. 

Evidence — Eight  of  prisoner  to  be  heard — Return.  February. 

A  fugitive  convict  was  brought  before  a  police  magistrate  in  Brisbane  for  an  ex- 
tradition order.  The  prisoner  was  undergoing  sentence  for  a  crime  committed  in 
Queensland.  A  warder  from  New  Caledonia  demanded  his  extradition  for  an  offence 
alleged  to  have  been  committed  in  France,  and  for  which  he  had  been  sentenced. 
The  order  for  committal  was  made.  An  application  for  habeas  corpus  \7as  then 
granted  on  the  ground  that  the  prisoner  was  not  given  a  chance  of  defence,  and 
could  have  disputed  his  identity. 

Held,  on  the  return  to  the  habeas  copiis,  that  the  prisoner  could  not  be  detained 
on  the  conviction  under  The  Extradition  Act,  but  must  be  remanded  to  custody 
under  the  warrant  mentioned  in  the  amended  return  to  the  writ.  The  Court  can 
go  behind  the  return  and  review  the  police  magistrate's  decision. 

In  re  Castioni,  1891,  1  Q.B.  149,  followed. 

Reg.  V.  Hiistin,  1  Q.L.J.  16,  discussed. 

Motion  for  the  release  of  a  prisoner  on  a  writ  of  habeas  corpus 
directing  the  keeper  of  Her  Majesty's  gaol  at  Brisbane  to  bring  up 
the  body  of  Carlo  Pedro,  a  prisoner  in  custody  under  a  warrant 
made  under  The  Extradition  Act.  The  habeas  corpus  was  granted 
on  the  grounds  (1)  that  the  prisoner  had  no  opportunity  of  getting 
legal  advice  ;  (2)  that  he  did  not  answer  to  the  description  which 
had  been  suppUed  ;  (3)  that  he  was  not  the  fugitive  criminal 
whose  extradition  was  demanded  by  the  French  authorities. 

The  prisoner  had  been  arrested  in  Queensland  and  sentenced 
to  seven  years'  imprisonment  for  robbery.  A  French  warder 
from  New  Caledonia  appUed  for  the  extradition  of  the  prisoner, 
as  being  a  man  who  had  been  sentenced  to  imprisonment  for  life 
for  theft  and  murder  in  France  in  1878.  The  prisoner  was  brought 
up  several  times  at  the  City  Police  Court,  but  the  French  oificial 
was  unable  to  identify  him  personally,  but  did  so  from  a  written 
description  of  certain  marks  on  the  body  of  the  prisoner.  An 
affidavit  of  a  medical  man,  filed  for  the  prisoner,  showed  there 
were  no  such  marks  as  alleged  by  the  French  authorities.  The 
poUce  magistrate  committed  the  prisoner.  An  appUcation  for 
habeas  corpus  was  then  granted  as  above.  The  prisoner  was 
produced,  and  the  return  read  and  referred  to  the  Full  Court  by 
Harding  J. 


242 


QUEENSLAND  JUSTICE   OF  THE    PEACE. 


Be  The  Extra- 
dition Acts,  1870 
and  1873,  In  re 
Carlo  Pedro. 


Harding  J. 


G.  W.  Power,  for  the  Crown. 

Harding  J.  :  In  England  it  is  usual  to  refer  cases  like  these  to 
the  Secretary  of  State  for  the  Colonies,. and  as  His  Excellency  the 
Governor  is  his  representative  here,  I  have  caused  communica- 
tion to  be  made  to  the  Colonial  Secretary,  and  expect  that  it  wiU 
by  that  means  come  to  His  Excellency's  knowledge. 

Power  :  The  question  whether  the  prisoner  had  a  right  to  give 
evidence  on  his  own  behalf  did  not  arise.  Clarke  on  Extradition, 
3rd  edition,  214. 

[Real  J.  :  I  think  the  prisoner  ought  to  have  had  an  oppor- 
tunity of  being  heard.  He  had  only  to  bare  his  breast  to  show 
that  the  marks  with  which  it  was  sought  to  prove  his  identity 
were  not  there.] 

The  question  of  identity  in  extradition  is  only  necessary  in 
criminal  cases,  but  where  extradition  of  a  prisoner  under  sentence 
is  asked  for,  it  is  only  necessary  to  make  out  a  case  before  magis- 
trates. 

[Real  J.  :  The  whole  question  to  my  mind  is  whether  by  the 
law  of  England  you  can  convict  a  man  without  his  being  heard.] 

The  evidence  as  to  identity  is  very  strong.  There  is  no  right 
to  go  behind  the  return.     In  re  Keogh,  15  V.L.R.  395. 

[Harding  J.  referred  to  In  re  Castioni,  1891,  1  Q.B.  149.] 

Re  Guerin,  58  L.J.  (M.C.)  45,  foot  note  ;  Reg.  v.  Hustin,  1 
Q.L.J.  16.  If  the  Court  has  power  to  send  the  case  back  to  the 
magistrates  they  might  try  the  questions  of  fact  on  the  affidavits, 
or  send  it  to  a  jury. 

Harding  J.  deUvered  the  judgment  of  the  Court : — 
This  is  a  matter  adjourned  from  my  chambers  to  this  Court, 
in  consequence  of  my  having  felt  myself  hampered  by  a  decision 
of  Mr.  Justice  Pring  in  the  case  of  The  Queen  v.  Hiistin,  1  Q.L.J., 
p.  16,  in  which  His  Honour  decided  that,  upon  a  habeas  corjms 
the  Court,  or  at  least  he  sitting  as  the  Court,  would  not  go  behind 
the  return,  the  return  being  of  a  similar  nature  to  that  in  this 
case.  Before  me  in  Chambers  the  prisoner  was  represented  by  a 
solicitor  or  legal  practitioner,  but  before  this  Court  he  has  not 
been  represented,  and  the  Court  has  given  such  assistance  as  it  is 
able  to  give,  and  I  think,  before  we  finally  deliver  judgment, 
although  we  have  done  all  on  his  behalf  that  we  could  have 
done  if  we   had  been  his   counsel,   that   he    should   be  asked 


CRIMINAL  REPORTS,   1860-1907.  243 

if  he  has  anything  to  say  on  his  own  behalf.     Prisoner,  do  you  j^j^oJ' ^cf "^  1870 
desire  to  be  heard  further  ?     [The   Warder  :    Prisoner  has  not     and  1873,  la  re 

got  anything  to  say,  your  Honour,  except  that  he  is  not  the      ^^"^^ ^■"'*''- 

man.]     As  it  stands  now,  a  writ  of  habeas  corpus  was  issued  for        Harding  J. 
the  production  of  this  prisoner,  and  for  the  return  of  the  authority 
for  his  detention.    He  has  been  produced,  and  the  return  has  been 
read.     It  is  under  a  warrant  under  The  Extradition  Acts,  and  also 
under  a  warrant  by  this  Court  sitting  in  its  criminal  jurisdiction. 
It  is  only  as  to  the  present  ground  that  we  have  to  deal  with  him. 
As  to  the  present  ground  it  appears  that  he  was  originally  brought 
before  the  PoUce  Magistrate  of  North  Brisbane,   and  that  the 
proceedings  there  have  apparently  been  regular  up  to  a  certain 
point ;    that  is  to  say,  the  case  against  him  was  entered  on,  and 
evidence  to  convict  him  was  tendered — and  possibly  sufficient 
evidence,  if  uncontradicted — but  at  this  stage,  instead  of  pro- 
ceeding as  in  an  ordinary  inquiry  before  a  Magistrate,  the  prisoner 
was  at  once  committed.     Now  there  is  a  maxim  of  law,    "  Audi 
alteram  partem,"  which  is  always  upheld,  and  has  been  conse- 
quently upheld  by  this  Court,  which  is  to  the  effect  that  wherever 
anjrthing  in  the    nature    of    judicial    proceedings   is   going   on, 
each  party  in  those  proceedings  must  be  heard  before  an  adjudica- 
tion can  be  made  against  him.     Here  he  was  not  in  the  usual 
way  asked  if  he  had  anything  to  say  or  any  evidence  to  give,  but 
the  conviction  was  entered  at  once.     That  we  consider  to  be 
WTong,  and,  consequently,  if  this  was  a  proceeding  for  a  writ  of 
certiorari,  the  adjudication  could  have  been  quashed.     We  have 
now  to  see  whether,  the  proceedings  here  being  of  habeas  corpus, 
a  man  can  be  held  under  a  conviction  which  would  be  quashed 
on  another  proceeding.     The  sections  of  the  Act  necessary  to  be 
referred  to  are  The  Extradition  Act,  1870  (33  &  34  Vict.,  c.  52), 
ss.  9,  10,  and  11,  "  when  a  fugitive  criminal  is  brought  before  a 
police  magistrate,  the  police-  magistrate  shall  hear  the  case  in  the 
same  maimer  and  have  the  same  jurisdiction  and  powers,  as  near 
as  may  be,  as  if  the  prisoner  were  brought  before  him  charged 
with  an  indictable  offence  committed  in  England."     Section  10 
enacts  that  "  in  the  case  of  a  fugitive  criminal  accused  of  an 
extradition  crime,  if  the  foreign  warrant  authorizing  the  arrest 
of   such   criminal  is   duly   authenticated,    and  such  evidence  is 
produced  as  would,  according  to  the  law  of  England,  justify  the 
committal  for  trial  of  the  prisoner,  if  the  crime  of  which  he  is 
accused  had  been  committed  in  England,  the  police  magistrate 
shall  commit  him  to  prison,  but  otherwise  shall  order  him  to  be 


244 


QUEENSLAND   JUSTICE   OF  THE  PEACE. 


He  The  Extra- 
dition Acts,  1870 
and  1873,  In  re 
Carlo  Phdbo. 

Harding  J. 


discharged."  The  second  paragraph  states,  "  In  the  case  of  a. 
fugitive  criminal  alleged  to  have  been  convicted  of  an  extradition 
crime,  if  such  evidence  is  produced  as  would,  according  to  the 
law  of  England,  prove  that  the  prisoner  was  convicted  of  such 
crime,  the  police  magistrate  shall  commit  him  to  prison,  but 
otherwise  shall  order  him  to  be  discharged."  Before  I  read  s.  11 
I  wiU  say  a  word  or  two  on  that  s.  10.  On  that  section  there  are 
two  sets  of  cases  provided  for.  The  one  case  is  that  of  a  fugitive 
convict ;  the  other  is  that  of  a  fugitive  accused  or  suspected 
person.  Now,  with  regard  to  the  fugitive  suspected  person, 
consider  what  are  the  proceedings  in  this  country  with  regard 
to  an  accused.  He  is  brought  before  the  magistrate  for  the 
purpose  of  committal  for  trial,  and  upon  the  production  of  evidence 
which  raises  such  a  case  as  to  induce  the  magistrate  to  think 
that  he  ought  to  be  committed  for  trial,  then  the  magistrates' 
are  to  commit  him.  They  have  not  to  weigh  the  evidence  and 
say  whether  the  man  is  guilty  or  not  guilty,  but  to  come  to  the 
conclusion  that  such  a  suspicion  is  aroused  that  the  justice  of  the 
case  can  only  be  satisfied  by  a  trial.  Upon  that  case  there  would 
arise  the  legal  existence  of  the  crime,  and  the  fact  that  the  party 
before  them  was  the  party  who  committed  the  crime.  Now,  as  to 
each  of  these  there  would  be  an  issue — has  such  a  crime  been 
committed  ?  Is  the  man  that  stands  in  the  dock  the  man  that 
committed  that  crime  ?  And  the  jury  in  the  Criminal  Court,  if 
the  Court  were  sitting  in  its  criminal  jurisdiction,  would  decide 
both  questions.  Secondly,  if  prima  facie  evidence  were  brought 
before  the  magistrates  that  such  a  crime  had  been  committed, 
and  that  the  man  before  them  was  the  man — it  does  not  matter 
whether  there  is  conflicting  evidence  or  not,  for  that  is  beyond  the 
magistrates'  power  to  adjudicate  upon — they  have  got  to  send  it 
on  to  the  further  Court.  Those  are  the  cases  which  are  provided 
for  in  the  first  part  of  s.  10,  so  that  the  paragraph  from  Clarke  on 
Extradition,  which  was  read,  would  appear  to  have  very  Uttle 
application  to  them.  And  then  there  is  another  class  of  cases  which 
come  before  the  magistrates,  more  commonly  called  summary 
justices,  where  the  magistrate  is  judge  and  jury  on  the  case,  and 
decides  it,  inflicting  punishment  as  the  result.  In  these  cases 
each  side  must  necessarily  be  heard,  and  that  is  what  ought  to- 
have  occurred  in  this  case.  But  that  is  not  what  has  occurred, 
in  this  case.  The  case  before  us  now  is  one  of  a  fugitive  convict 
brought  before  the  magistrate  for  an  extradition  order,  and 
the  magistrate  has  proceeded  as  if  it  were  a  fugitive  accused 


CRIMINAL  REPOETS,   1860-1907. 


245 


brought  before  him.     But  it  is  not  necessary  to  say  that  even  in 
that  case  the  magistrates  would  be  right,  for  I  doubt  in  my  own 
mind  whether  even  on  that  he  ought  not  to  have  heard  what  there 
was,   because   he  might  have  produced  evidence  so   conclusive 
that  there  might  not  be  any  answer  to  it.     But  that  need  not  be 
dwelt  upon.     Then  we  come  to  the  11th  section,  which  says  "  If 
the   police   magistrate   commits    a   fugitive   criminal   to   prison, 
he  shall  inform  such  criminal  that  he  will  not  be  surrendered 
until  after  the  expiration  of  fifteen  days,  and  that  he  has  a  right 
to  apply  for  a  writ  of  habeas  corpus.     ...     If  a  writ  of  habeas 
corpus  is  issued  after  the  decision  of  the  Court  upon  the  return 
to  the  writ,  it  shall  be  lawful  for  a  Secretary  of  State,  by  warrant 
under  his  hand  and  seal,  to  order  the  fugitive  criminal  (if  not 
delivered  on  the  decision  of  the  Court)  to  be  surrendered."     Now, 
reading  this   11th  section,  it  seems    impossible  to  conceive  its 
meaning  to  be  to  give  him  a  right  to  apply  for  a  habeas  corpus 
within  fifteen  days,  unless  something  can  be  done  on  that  habeas 
corpus,  because,  if  on  that  habeas  corpus  a  return  has  to  be  made, 
and  the  magistrate  has  committed,  it  would  be  simple  justice  to 
remand  him,  and  the  benefit  given  him  by  the  11th  section  would 
seem  to  be  a  nulUty  ;   but  if,  on  the  other  hand,  something  can  be 
done  on  the  return  of  that  habeas  corpus,  then  the  11th  section  is 
intelligible  and  the  remedy  a  useful  one.     Now,  on  that  section, 
there  have  been  decisions  quoted.     One  of  them  is  in  a  note  to 
In  re  Ouerin,  58  L.J.  (M.C.),  p.  45,  "  A  prisoner  also  obtained  an 
order  for  a  habeas  corpus  on  the  ground  that  he  was  a  British 
subject.     The  Court  held  that  it  was  competent  for  them  to 
review  the  magistrate's  decision  on  that  point,  and,  as  the  affidavits 
were  of  a  conflicting  character,  ordered  an  issue  to  be  tried  before 
a  jury  to  determine  this  question.     The  issue  was  tried  on  the 
21st  December,  before  Baron  Huddleston  and  a  common  jury, 
and  the  prisoner  was   ordered   to   be  delivered  to  the  French 
authorities."     And  then  there  is  a  case  of  Re  Castioni  in  L.R., 
1891,  1  Q.B.  149,  and  there  the  Judges  went  into  this  point  at 
considerable-,  length.-    The'  judgment    of    Mr.    Justice    Denman 
bears  upon  the  subject,  and  I  quote  from  p.  157  of  that  judgment. 
He  went  into  both  of  these  sections  at  length.     "  It  was  at  first 
contended,  in  opposition  to  the  application  for  a  habeas  corpus, 
that  if  the  magistrate  upon  this  question  once  made  up  his  mind 
the  Court  had  no  jurisdiction  to  deal  with  it.     It  appears  to  me 
that  this  proposition  cannot' be  maintained  on  the  very  face  of 
the  Act  itself,  which  requires  by  s.  11  that  the  magistrate  shall 


Re  The  Extra- 
dition Acts,  1870 
and  1873, /»  re 
Cablo  Pedbo. 

Harding  J. 


246  QUEENSLAND  JUSTICE   OP  THE   PEACE. 

Se  The  Extra-  inform  the  prisoner  that  he  may  apply  for  a  habeas  corpus,  and 
^^nd  181 3, 'in  re  if  he  is  entitled  to  apply  for  a  habeas  corpus,  I  think  it  follows 
Caklo  Pedbo.  ^iia,t  this  Court  must  have  power  to  go  into  the  whole  matter, 
Harding  J.  and  in  some  cases  certainly,  if  there  be  fresh  evidence,  or  perhaps 
upon  the  same  evidence,  might  take  a  different  view  of  the  matter 
from  that  taken  by  the  magistrate."  Then  Mr.  Justice 
Haivkins  deUvered  judgment,  and  at  p.  161  says  :  "  Now,  the 
matter  has  been  before  the  magistrate,  and  the  magistrate  acting 
upon  the  information  and  the  evidence  before  him,  has  come 
to  the  conclusion  that  two  things  exist.  First  of  all,  that  there 
is  abundance  of  evidence  to  justify  him  in  committing  the  man 
to  be  tried  for  murder — that  is  to  say,  there  would  have  been 
had  this  crime  been  committed  in  this  country  ;  and,  secondly, 
he  has  come  to  the  conclusion,  rightly  or  wrongly,  on  which  I 
will  have  a  word  or  two  to  say,  that  the  offence  was  not  of  a 
political  character,  and  that,  therefore,  he  ought  to  be  given  up. 
The  matter  now  comes  before  us — I  will  not  say  to  review  the 
whole  of  his  decision — but  to  ask  ourselves  whether  or  not,  having 
regard  to  the  whole  of  the  circumstances  which  are  brought  to  our 
attention,  and  which  are  proved  by  the  depositions  and  other 
evidence  in  the  case,  we  come  to  the  same  conclusion  as  the 
magistrates,  or  whether  we  deliberately  arrive  at  an  opposite 
conclusion.  Now,  it  seems  to  me  to  be  impossible  to  say,^  for 
the  reasons  which  were  stated  in  the  course  of  the  argument, 
that  if  a  man  has  a  right  to  move  for  a  habeas  corpus  in  order  that 
the  case  may  be  reviewed,  or  for  the  purpose  of  getting  his  dis- 
charge, he  might  not  enter  into  matters  which  showed  he  had 
been  guilty  of  no  offence  at  all ;  and  I  should  have  said  that  by 
no  means  was  the  matter  concluded  by  the  magistrate's  decision 
that  he  be  committed  for  trial,  because  the  magistrate  does  not 
sit,  when  he  is  committing  for  trial,  as  a  magistrate  sitting  finally 
to  dispose  of  the  case  and  to  give  judgment  upon  it ;  but  he  states 
his  opinion  that  there  is  a  prima  facie  case,  and  on  that  ground  he 
signs  his  warrant  of  committal.  Again,  with  reference  to  the 
question  of  whether  the  magistrate  has  a  right  to  deal  with  a 
man  and  to  deal  with  his  objection  of  being  committed  for  trial 
for  an  extradition  crime,  I  entertain  no  doubt  that  the  magistrate 
has  no  right  and  no  jurisdiction  to  find  finally,  as  against  the 
prisoner,  whether  or  not  he  has  committed  that  crime  which  he  is 
charged  with  having  committed,  or  whether  that  crime  is  one  of  a 
political  character.  I  desire  to  call  attention  to  certain  pro- 
visions in  The  Extradition  Act.     First,  by  s.  3,  a  fugitive  criminal 


CEIMINAL  EEPORTS,  1860-1907. 


247 


shall  not  be  siirrendered  if  the  offence  in  respect  of  which  his  sur- 
render is  demanded  is  one  of  a  political  character,  such  as  treason 
or  other  matters  ;  or,  if  he  proves  to  the  satisfaction  of  the  police 
magistrate  that  the  requisition  for  his  surrender  has,  in  fact,  been 
made  with  a  view  to  try  him  for  an  offence  of  a  political  character. 
These  latter  words  undoubtedly  tend  to  show  that  Sir  Charles 
Russell  was  wrong  in  the  view  that  he  took  that  the  onus  is  upon 
those  who  seek  for  the  extradition  to  show  that  the  offence  com- 
mitted is  not  of  a  poUtical  character,  because  it  must  be  upon 
the  person  who  seeks  to  be  discharged  on  the  ground  that  his 
surrender  is,  in  fact,  asked  for  with  a  view  to  punish  him  for  an 
offence  of  a  political  character  ;  the  onus  of  estabhshing  that 
is  upon  the  alleged  criminal  himself.  Now,  s.  9  and  s.  10  seem  to 
me  to  have  some  bearing  on  the  question  as  to  whether  or  not 
the  offence  of  which  a  man  is  charged  is  of  a  poUtical  character. 
First  of  all,  the  ninth  section  enacts  that  "  When  a  fugitive 
criminal  is  brought  before  a  police  magistrate,  the  poUce  magis- 
trate shall  hear  the  case  in  the  same  manner,  and  have  the  same 
jurisdiction  and  powers,  as  near  as  may  be,  as  if  the  prisoner  were 
brought  before  him  charged  with  an  indictable  offence  committed 
in  England."  If  he  were  charged  before  a  magistrate  with  an 
indictable  offence  committed  in  England,  the  question  of  whether 
or  not  the  offence  for  which  he  was  indicted  were  of  a  political 
character  or  not  would  make  no  difference.  But  under  this 
section  the  magistrate  is  to  deal  with  him  as  though  the  offence 
charged  were  an  indictable  offence  committed  in  England.  Then 
the  section  goes  on  to  say  :  "  The  poHce  magistrate  shall  not 
adjudge  that  the  offence  is  of  a  political  character,  but  he  shall 
receive  any  evidence  which  may  be  tendered  to  show  that  the 
crime  of  which  the  prisoner  is  accused,  or  alleged  to  have  been 
convicted,  is  an  offence  of  a  political  character,  or  is  not "  an 
extradition  crime."  It  seems  to  me  that  the  language  of  this 
part  of  the  ninth  section  in  itself  shows  that  the  onus  is  on  the 
person  who  seeks  to  absolve  or  exonerate  himself  from  the  liability 
to  be  handed  over  to  the  Government  of  the  territory  within  which 
the  crime  was  committed.  I  find  here,  in  furtherance  of  what 
I  have  to  say  about  this  question  of  the  jurisdiction  of  the  magis- 
trate, s.  10,  which  is,  to  my  mind,  by  no  means  unimportant  : 
"  In  the  case  of  a  fugitive  criminal  accused  of  an  extradition  crime, 
if  the  foreign  warrant  authorising  the  arrest  of  such  criminal  is 
duly  authenticated,  and  such  evidence  is  produced  as  (subject 
to  the  provisions  of  this  Act)  would,  according  to  the  law  of 


Re  The  Extra- 
dition Acts,  1870 
and  1873,  In  re 
Carlo  Pedbo. 

Harding  J. 


248 


QUEENSLAND  JUSTICE   OF  THE   PEACE. 


Be  The  Extra- 
dition Acts,  1870 
and  ]  873,  In  re 
Carlo  Pedbo. 

Harding  J. 


England,  justify  the  committal  for  trial  of  the  prisoner  if  the 
crime  of  which  he  is  accused  has  been  committed  in  England,  the 
police  magistrate  shall  commit  him  to  prison  ;  but  otherwise 
shall  order  him  to  be  discharged."  It  does  not  seem  to  give 
the  magistrate  himself  the  power  of  dealing  with  the  matter 
other  than  this  :  he  is  to  consider  whether  the  crime  is  one  which, 
if  committed  in  England,  would  have  made  it  imperative  upon  him 
in  discharging  his  duty  to  commit  the  man  to  prison.  If  so, 
he  is  to  commit  him  to  prison,  but  he  is,  as  I  have  already  shown 
by  s.  9,  obliged  to  receive  any  evidence  which  may  be  tendered 
to  show  that  the  crime  is  of  a  political  character,  and  that  is 
analogous  to  the  provisions  in  Russell  Owrney's  Act  (30  &  31 
Vict.,  c.  35),  which  makes  it  the  duty  of  a  magistrate,  if  a  prisoner 
wishes  to  call  evidence  in  support  of  his  defence  which  he  intends 
to  set  up  when  he  comes  to  be  indicted,  to  take  that  evidence  and 
hand  it  over  to  the  tribunal  before  whom  the  prisoner  is  ultimately 
to  appear.  In  furtherance  of  this  view  that  I  take,  I  read  the 
11th  section  :  "  If  a  police  magistrate- commits  a  fugitive  criminal 
to  prison,  he  shall  inform  such  criminal  that  he  shall  not  be 
surrendered  until  after  the  expiration  of  fifteen  days,  and  that 
he  has  a  right  to  apply  for  a  writ  of  habeas  corpus,"  which  may  very 
well  mean  this  :  "I  have  power  to  commit  you  to  prison  because 
I  am  satisfied  that  you  have  been  guilty  of  a  crime  to  which  the 
extradition  law  and  treaty  apply  ;  you  have  a  right  to  have  any 
evidence  taken  on  your  behalf  to  show  that  you  are  a  criminal 
who  ought  not  to  be  sent  out  because  your  offence,  even  if  com- 
mitted, was  of  a  political  character.  I  wiU  take  the  evidence  for 
you.  You  have  fifteen  days  to  make  application  for  your  release 
if  you  think  fit  to  move  for  a  habeas  corpus."  What  follows 
afterwards  shows  that  it  is  not  the  magistrate  who  is  to  determine 
these  matters,  but  it  is  the  Home  Secretary  who  is  to  determine 
whether  or  not  ultimately  the  prisoner  is  to  be  sent  abroad,  because 
the  second  part  of  the  11th  section  goes  on  to  say  :  "  Upon  the 
expiration  of  the  said  fifteen  days,  or  if  a  writ  of  habeas  corpus 
is  issued  after  the  decision  of  the  Court  upon  the  return  to  the 
writ,  as  the  case  may  be,  or  after  such  further  period  as  may  be 
allowed  by  a  Secretary  of  State,  it  shall  be  lawful  for  a  Secretary 
of  State,  by  warrant  under  his  hand  and  seal,  to  order  the  fugitive 
criminal  (if  not  delivered  on  the  decision  of  the  Court)  to  be  sur- 
rendered to  such  person  as  may,  in  his  opinion,  be  duly  authorised 
to  receive  the  fugitive  criminal."  These  are  the  provisions  of  the 
Actj  and  they  are  quite  sufficient  to  satisfy  me  that  the  magis- 


CEIMINAL  REPOETS,   1860-1907. 


249 


Re  The  Extra - 


CiKLO  Pedbo. 
Harding  J. 


trate's  decision  is  by  no  means  binding,  either  in  point,  of  law  ^^■jq 

or  in  point  of  fact,  and  that  when  these  matters  come  to  be  and  1873,  In  re 
considered  upon  the  habeas  corptis,  if  the  Judges  have  to  consider 
the  case,  they  must  consider  the  case  as  it  is  before  them  at  the 
time  the  rule  is  discussed  ;  and  I  think  that,  in  considering  the 
matter,  though  we  pay  respect  to  the  magistrate's  view,  we  are 
not  bound  to  follow  it  at  the  expense  of  the  criminal  if,  upon  the 
whole  state  of  things  before  us,  we  come  to  the  conclusion  either 
that  the  crime  has  not  been  committed,  and  that  there  is  no 
prima  facie  evidence  of  it,  or  that  the  criminal  ought  not  be  sent 
out  to  his  own  Government  for  the  purpose  of  being  dealt  with 
by  reason  of  his  oflEence  being,  though  a  crime,  a  crime  of  a 
poUtical  character."  I  have  no  doubt  that  that  is  good  law. 
The  authorities  collected  in  Paley  on  Extraditions,  7th  Ed., 
p.  346,  lay  it  down  very  clearly  that,  on  a  conviction  that  would 
be  quashed  if  brought  before  the  Court  in  another  form  of  pro- 
ceedings, the  prisoner  cannot  be  detained.  I  am  perfectly  satis- 
fied that  on  another  form  of  proceeding  this  conviction  would 
not  stand,  but  would  be  quashed.  Consequently,  the  prisoner 
•cannot  be  detained  on  this  conviction,  but  he  must  be  remanded 
to  his  present  keeping  under  an  amended  return  of  the  writ.  To 
make  it  more  clear,  he  is  to  be  discharged  from  the  warrant  issued 
on  the  conviction  under  The  Extradition  Act,  and  he  is  to  be 
remanded  to  custody  under  the  warrant  which  is  mentioned  in 
the  amended  return  to  the  writ.  My  brother  Judges  concur, 
.and  that  is  the  judgment  of  the  Court. 

Solicitor  for  prisoner  :    Price. 

iSohcitor  for  Crown :    J.  Howard  Gill. 


[FuLi.  Court.] 
BRITCHER  V.  WILLIAMS  AND  OTHERS. 

(5  Q.L.J.  39.— Note.— Sec.  27  ol  the  Brands  Act  ol  1872  is  repealed,  see  now  s.  447 

ol  Criminal  Code.    As  to  causing  act  to  be  done,  see-now  s.  7  of  Criminal 

Code.] 

Brands  Act  of   1872,  s.   27— Admission  of  evidence  of  previous 

convictions — Practice — Costs. 

Two  snmmonses  were  issued   against  B  ,  at  the  Cbarleville  Police  Court,  for 

wilfully  branding  with  his  registered  brand  two  calves  of  which  he  was  alleged  not 


1893. 
April. 

Griffith  C.J. 
Harding  J. 
Chubh  J. 
Bcal  J. 


250 


QUEENSLAND  JUSTICE  OF  THE  PEACE. 


Bkitchee  v. 

Williams  and 

Otheeb. 


to  be  the  rightful  owner.  By  consent  both  summonses  were  heard  as  for  one 
offence  only.  Evidence  was  given  of  previous  convictions  for  illegally  branding, 
but  that,  as  to  branding,  did  not  show  that  B.  had  himself  branded  either  of  the 
calves,  and  he  was  convicted  and  fined  £40  and  costs. 

Held,  on  a  motion  to  quash  the  conviction,  that  as  the  evidence  of  previous 
convictions  had  not  been  objected  to  before  its  admission,  the  conviction  was  not 
bad  on  that  ground,  but  that  the  conviction  must  be  quashed  on  the  ground  that 
the  evidence  did  not  show  B.  to  be  guilty  of  the  offence  charged.  The  evidence 
showed  that  he  was  present  and  caused  the  branding  to  be  done. 

The  rule  was  made  absolute,  with  costs  against  the  Crown. 

Motion  for  a  rule  absolute  to  quash  a  conviction  or  order  made 
by  John  Vivian  WUUams,  Police  Magistrate,  and  John  Armstrong, 
Junior,  at  the  Charleville  Police  Court,  on  the  3rd  day  of 
February,  1893,  on  a  complaint  wherein  Herbert  Hart  was  com' 
plainant,  and  Henry  Samuel  Britcher  defendant,  on  the  iollowing 
grounds : — (1)  Wrongful  admission  of  evidence  of  previous 
convictions  ;  (2)  that  the  evidence  did  not  show  the  defendant 
to  be  guilty  of  the  offence  charged  ;  and  (3)  that  there  was  no 
evidence  to  support  the  conviction. 

Bannatyne,  for  Britcher  ;  Byrnes  A.G.  and  Feez,  for  the  con- 
victing magistrates,  and  (at  a  later  stage)  for  the  Crown,  to 
show  cause. 

Bannatyne :  The  evidence  showed  that  the  branding  was 
done  by  a  servant  of  B.,  assisted  by  his  two  sons.  Evidence  was 
admitted  of  previous  convictions.  In  a  criminal  case,  oiily 
evidence  material  to  the  issue  can  be  allowed — Beg.  v.  Gibson, 
18  Q.B.D.  537.  The  Bench  allowed  the  sergeant  of  police  to 
state  that  there  had  been  two  previous  convictions,  and  that,  in 
the  first  case,  the  defendant  had  been  fined  £10,  and  the  second 
£20. 

[Geiffith  C.J.  :  We  are  all  agreed  that  it  was  not  admissible 
evidence  if  it  was  objected  to.] 

[Haeding  J.  :  It  has  been  laid  down  over  and  over  again  that 
a  Judge  of  this  Court  must  not  allow  a  prisoner  to  be  convicted 
on  improper  evidence,  and  that  it  is  the  Judge's  duty  throughout 
the  trial  to  protect  the  prisoner  from  improper  evidence.] 

[Geiffith  C.J.  :  Can  you  show  that  in  a  case  of  summary 
conviction  before  justices  any  conviction  must  fail  if  evidence 
is  admitted  which  is  inadmissible  ?] 

^  submit  that  is  so.  There  is  a  conflict  of  evidence  as  to 
whether  the  evidence  was  objected  to. 


CRIMINAL  REPORTS,  1860-1907. 


251 


[Griffith  C.J.  :    Is  there  any  case  where  a  conviction  has  Bkitoheb  «. 

not   been   sustained   where  the  objection  as  to  admissibihty  of  Otheks. 

evidence  is  made  for  the  first  time  after  the  conviction  ?]  

I  do  not  know  of  any. 

[Griffith  C.J.  :  Neither  do  I.  In  common  law,  if  you  give 
imsound  reasons  for  the  admissibility,  of  evidence,  and  the  Judge 
admits  it,  you  cannot  afterwards  upset  the  decision  071  that 
point.] 

As  to  the  third  objection.  Ex  parte  Hop  Sing,  4  N.S.W., 
W.N.,  59,   was  cited. 

Byrnes  A.G.  :  The  appellant  was  only  nineteen  yards  away 
from  where  the  branding  took  place.  He  was  practically  present 
and  employed  an  innocent  person  to  do  an  illegal  act.  The  defen- 
dant admitted  in  cross-examination  that  he  had  been  twice 
convicted.  No  objection  was  taken  to  the  evidence-in-chief 
at  the  time.  The  police  magistrate  has  made  an  affidavit  to  that 
effect. 

Bannatyne,  in  reply,  submitted  there  was  no  evidence  that  the 
appellant  was  so  close  to  the  man  actually  doing  the  branding 
that  he  was  actually  engaged  in  the  work  himself. 

Griffith  C.J.  :  This  is  a  motion  to  quash  a  conviction  against  Griffith  C.J. 
Henry  Samuel  Britcher  for  illegally  branding  two  calves,  on  the 
grounds  (1)  that  evidence  of  previous  convictions  was  wrongfully 
admitted  ;  (2)  that  the  evidence  did  not  show  the  defendant  to 
be  guilty  of  the  offence  charged  ;  and  (3)  that  there  was  no  evidence 
to  support  the  conviction.  As  to  the  wrongful  admission  of 
evidence,  affidavits  have  been  filed  that  no  objection  was  made 
at  the  time.  I  beheve  that  was  the  case,  and  on  that  ground  the 
appeal  fails.  If  justices  are  to  be  held  responsible  for  the  ad- 
mission of  evidence,  and  if  a  conviction  is  not  to  hold  good  when 
evidence  is  wrongfully  admitted  without  an  objection  being 
made  at  the  time,  an  intolerable  burden  will  be  imposed  on 
magistrates.  Another  objection  is  that  the  offence  of  which  the 
defendant  has  been  convicted  is  different  from  the  one  with  which 
he  has  been  charged.  The  defendant  was  charged  with  branding, 
and  the  evidence  clearly  showed  that  he  caused  and  directed 
the  branding  to  be  done.  The  real  question  is  whether  under  the 
circumstances  he  was  properly  charged  with  branding.  It  is  not 
necessary  that  a  man  should  actually  do  the  branding  himself 
to  become  a  principal.     If  he  were  in  the  yard  and  saw  the  brand- 


252 


QUEENSLAND  JUSTICE   OP  THE   PEACE. 


Br.ITCHEB  V. 

Williams  and 
Othees. 

Griffith  C  J. 


Harding  J. 


Chubb  J. 
Eeal  J. 

Griffith  C.J. 


ing  done,  he  is  quite  as  much  a  principal.  No  alteration  has  heen 
made  in  the  charge  preferred  against  the  defendant,  and  on  that 
ground  I  think  the  order  must  be  made  absolute  and  the  con- 
viction quashed.  Costs  were  asked  against  the  Crown,  but  I 
do  not  think  they  should  be  granted. 

Harding  J.  :  I  think  the  rule  should  be  made  absolute  and  the 
conviction  quashed  on  the  second  ground,  but  I  do  not  express 
any  opinion  at  present  with  regard  to  the  first  ground  of  the 
appeal.  The  Crown  has  joined  in  the  fight  and  supported  the 
complaint,  they  must  bear  the  penalty  and  will  have  to  pay  the 
costs. 

Chubb  and  Real  JJ.  concurred. 

Griffith  C.J. :  I  hold  the  opinion  that  the  Crown  ought  never 
to  pay  costs  in  criminal  or  quasi-criminal  cases  ;  but  perhaps 
I  am  prejudiced  on  account  of  having  been  so  long  a  Crown  Law 
Officer. 

Rule  absolute  with  costs  against  the  Crown. 

Solicitors  for  appellant :    Bouchard  <fc  Holland. 
Solicitor  for  respondent :    J.  Howard  Gill. 


1894. 
October. 

CooperJ, 
CImbb  J. 


[Northern  Full  Court.] 
SMITH  V.  O'BYRNE,  Ex  parte  O'BYRNE. 

[5  Q.L.J.  126.— Note.— See  now  s.  280  of  Criminal  Code.    See  also  Spatkes  v. 
Martin  (2  Q.J.P.R.  12),  Armat  v.  Little  (3  Q.J.P.R.  21,  1909,  S.B.Q.  83.)] 

Assault — Schoolmaster — Punishment  of  pupil — Excessive  violence. 

A  schoolmaster  may  punish  for  school  offences,  but  if  he  exceeds  the  bounds  of 
moderation  eiliher»in  the- manner,  instrument,  or  quantity  of  the  punishment,  he  is 
answerable  for  the  excess. 

The  authority  and  position  of  a  schoolmaster  explained. 

Motion  calling  upon  E.  J.  Hennessy,  John  T.  H.  Bowden,  and 
G.  Massey,  of  Thursday  Island,  to  show  cause  why  a  conviction 
or  order  made  against  Mary  O'Byrne  for  a  common  assault  upon 
one  Stella  Anne  Smyth,  whereby  the  said  Mary  O'Byrne  was  fined 
one  penny,  should  not  be  quashed,  on  the  ground  that  there  was 
no  evidence  of  excess  either  in  the  manner,  instrument,  or  quantity 
of  punishment  inflicted,  and  why  the  said  Mary  O'Byrne  should 
not  recover  the  costs  of  the  application. 


CEIMINA.L  EEPOETS,   1860-1907.  25S 

The  facts  appear  in  the  judgment  of  Chubb  J.  Smith  v.  o;Bybne 

^^  •"       °  Ex  parte  O'BYRHii 

Macnaughton,    for    the    appellant,    moved    the    rule    absolute.  

The  punishment  was  not  excessive.     Archbold's  Criminal  Practice, 

723.     The  Court  will  review  the  finding  of  the  justices.     Neighbour 

V.  Moore,  4  Q.L.J.  145. 

Jameson,  for  the  justices,  asked  to  be  heard  on  the   question 
of  costs,  as  the  magistrates  had  been  brought  into  Court. 

Cooper  J.  :  You  cannot  have  costs.  My  opinion  is  now,  as  Cooper  J. 
it  was  when  I  granted  the  rule  nisi,  that  there  was  absolutely 
no  evidence  before  the  magistrates  that  there  was  excess  in  the 
force  of  the  application  of  the  instrument,  or  that  an  improper 
instrument  had  been  used  in  the  punishment  of  the  child.  That 
being  so,  the  rule  must  be  made  absolute,  with  costs  against  the 
respondent  and  not  against  the  magistrates. 

Chtjbb  J.  :  As  this  is  a  matter  of  some  importance,  I  have  Chubb  J. 
taken  the  opportunity  since  the  papers  have  been  in  my  possession 
to  look  into  the  authorities,  and  it  may  be  useful  to  schoolmasters 
and  others  to  know  the  law  on  such  matters.  A  schoolmaster 
may,  in  respect  of  school  offences,  misbehaviour,  disobedience, 
idleness,  and  the  like,  lawfully  inflict  moderate  and  reasonable 
corporal  chastisement,  commensurate  with  the  ofiPence,  upon  a 
scholar  capable  of  appreciating  the  punishment.  If,  however, 
he  exceeds  the  bounds  of  moderation,  either  in  the  manner,  the 
instrument,  or  the  quantity  of  the  punishment,  the  excessive 
violence  is  unlawful,  and  he  is  answerable  to  the  law  for  that 
excess.  The  authorities  for  this  doctrine  will  be  found  in  1 
Hawk.  P.C,  c.  60,  s.  23  ;  Bac  Ab.  (Assault  and  Battery)  ;  1 
Hale,  P.C,  473,  474  ;  1  East  P.C,  406  ;  Com.  Dig.  Pleader 
(3  M.,  19)  ;  Stephen's  Crim.  Dig.  (Art.  201)  ;  1  Buss.  Cr.,  4th 
Ed.,  751,  1026  ;  B.  v.  Miles,  6  Jur.  243  ;  R.  v.  Hopley,  2  F.  &  F., 
202  ;  B.  V.  Griffin,  11  Cox  CC,  402  ;  and  Fitzgerald  v.  Northcote,  4 
F.  &  F.,  656.  In  Year  Book,  7  Ed.  IV.,  the  position  of  the  school- 
master is  put  as  that  of  temporary  guardian.  In  Year  Book,  21 
Ed.  IV.,  fo.  6,  p.  12,  there  is  a  case  of  assault  and  battery  by  an 
apprentice  against  his  master,  in  which  appears  a  qucere — "  if  a 
schoolmaster  can  justify  {i.e.,  beating  a  scholar),  for  it  is  not 
prejudice  to  him  if  the  scholar  will  not  take  learning."  Whether 
this  qucere  is  the  observation  of  the  Judge  or  an  addition  of  the 
reporter  does  not  appear  clearly.  The  remark  seems  foohsh,  and 
the  reason  trivial.  In  B.  v.  Hopley,  2  F.  &  F.,  202,  where  a 
schoolmaster  was  indicted  for  the  manslaughter  of  a  scholar,  a 


254  QUEENSLAND  JUSTICE   OF   THE    PEACE. 

Smith  D.  0|Byene  ^^^j  g^gg(j  thirteen,  by  excessive  beating  with  a  thick  stick, 
xpait^  -JENE  Q^gjj|^yj,j^  Q  j_  directed  the  jury  as  follows  :  "By  the  law  of 
Chubb  J.  England  a  parent  or  a  schoolmaster  (who  for  this  purpose  repre- 
sents the  parent  and  has  the  parental  authority  delegated  to 
him)  may,  for  the  purpose  of  correcting  what  is  evil  in  the  child, 
inflict  moderate  and  reasonable  corporal  punishment,  always, 
however,  with  this  condition — that  it  is  moderate  and  reasonable. 
If  it  be  administered  for  the  gratification  of  passion  or  of  rage, 
or  if  it  be  immoderate  or  excessive  in  its  nature  or  degree,  or  if  it 
be  protracted  beyond  the  child's  powers  of  endurance,  or  with 
an  instrument  unfitted  for  the  purpose  and  calculated  to  produce 
danger  to  life  and  limb,  in  all  such  cases  the  punishment  is  exces- 
sive, the  violence  is  unlawful,  and  if  evil  consequences  to  Ufa 
or  limb  issue,  then  the  person  inflicting  it  is  answerable  to  the 
law."  In  a  subsequent  case,  Fitzgerald  v.  Northcote,  4  F.  &  P., 
()56,  the  same  learned  Judge  says  :  "  The  authority  of  the  school- 
master is,  while  it  exists,  the  same  as  that  of  the  parent.  A 
parent,  when  he  places  his  child  with  a  schoolmaster,  delegates 
to  him  all  his  own  authority,  so  far  as  it  is  necessary  for  the  weKare 
of  the  child."  In  both  these  oases,  it  may  be  noticed  in  passing, 
the  scholars  were  boarders  ;  and  in  B.  v.  Hopley  the  master,  before 
inflicting  the  punishment,  had  written  to  the  boy's  father  pro- 
posing to  give  the  boy  a  severe  beating,  and  had  received  the 
father's  assent  thereto.  In  this  case  the  appellant,  the  head 
mistress  of  the  primary  school  at  Thursday  Island,  punished,  in 
open  school,  a  girl  day  scholar,  aged  nine  years,  for  continued 
neglect  of  home  lessons,  after  previous  warning  and  punishment. 
The  punishment  consisted  of  four  strokes  of  a  cane,  described  in  the 
evidence  as  of  about  the  thickness  of  a  boy's  little  finger.  Two 
of  the  strokes  were  on  the  right  hand,  one  on  the  left,  and  the 
fourth  on  the  left  forearm,  two  inches  above  the  wrist.  It  is 
apparently  this  last  stroke  that  is  complained  of — the  cau^a 
teterrima  belli.  A  medical  expert,  Dr.  Salter,  who  saw  the  injury 
on  the  same  day  and  shortly  after  it  was  afflicted,  deposed  that 
there  was  a  slightly  raised  mark  above  the  wrist,  that  he  did  not 
think  the  child  would  suffer  from  it,  and  that  it  was  nothing 
serious,  but  that  it  might  have  led  to  a  serious  injury  as  regards 
muscular  action,  and  that  in  his  opinion  (in  which  I  quite  agree) 
■'  on  the  wrist  is  not  a  fit  place  to  cane  a  child."  The  evidence 
of  the  child  and  her  juvenile  brother  was  that  she  had  her  hand 
out  perfectly  still — leading  to  the  inference  that  the  blow  on  the 
wrist  was  intentional.     If  this  were  so,  and  the  justices  on  reason- 


CRIMINAL  REPORTS,  1860-1907.  255 

able  evidence  came  to  that  opinion,  and  also  to  the  opinion  that  Smith  -j.  O'Bybne 
,1  TIT  o  ■  ,  ,  ,  .  „  ,  Ex  paric  O'Bybne 
there  had  been  an  excess  of  violence,  then  their  finding  on  the  

facts  ought  not  to  be  disturbed  by  this  Court,  and  the  conviction  Chubb  J. 
ought  to  be  sustained.  Then  was  there  any  reasonable  evidence 
of  an  unlawful  battery  ?  The  act  of  correction  was  lawful  in 
itself.  It  could  only  become  unlawful  by  and  in  respect  of  an 
excess.  To  make  it  an  offence  punishable  by  the  criminal  law 
the  battery  must  have  been  intentional  as  well  as  excessive.  If, 
therefore,  the  stroke  on  the  wrist  was  unintentional  and  happened 
by  misadventure,  or  was  caused  by  the  child's  own  fault,  then  it 
was  no  battery.  There  is  no  necessity  to  cite  authorities  for  this 
elementary  proposition.  Now  the  evidence  of  the  appellant  and 
three  of  the  school  children  was  that  the  stroke  on  the  wrist  was 
occasioned  by  the  child  swerving  her  hand  as  the  cane  descended. 
Looking  at  the  whole  of  the  evidence  and  to  the  fact  that  there 
was  no  evidence  of  anger  or  improper  feeling  shown  by  the 
appellant,  or  of  cruelty  either  by  use  of  an  improper  instrument 
for  punishment  or  by  the  infliction  of  an  excessive  number  of 
strokes,  I,  as  a  judge  of  fact,  would  have  been  prepared  to  accept 
the  appellant's  version  of  the  affair  as  the  true  one,  not  only  on 
the  weight  of  evidence,  but  because  I  cannot  bring  myself  to  the 
belief  that  the  appellant  deliberately  and  cruelly  struck  intention- 
ally at  the  child's  wrist.  The  three  justices,  however,  who  heard 
the  case  have  come  to  that  conclusion,  necessarily  disbelieving 
the  appellant's  story,  and  declining  to  accept  her  explanation. 
Then,  with  regard  to  the  injury  itself,  it  was  stated  to  be  "  nothing 
serious  " — the  child  did  not  cease  attending  school  in  consequence 
— and  that  it  was  of  the  most  trifling  character  is  indicated  by 
the  fine  of  the  penny  inflicted  by  the  justices.  I  may  say,  how- 
ever, that  I  do  not  for  a  moment  doubt  that  the  justices  came  to 
that  conclusion  in  perfect  good  faith.  Now  this  Court  will 
review  the  finding  of  justices,  even  upon  the  facts  where  it  appears 
that  they  have,  in  our  opinion,  taken  an  unreasonable  view  of 
the  evidence,  and.  the  interests  of  justice  require  it.  Neighbour 
V.  Moore,  4  Q.L.J.  145,  p.  14,  per  Lilley  C.J.  I  have  no  hesita- 
tion in  saying  that  I  can  myself  see  nothing  to  justify  the  infliction 
of  even  the  nominal  fine  imposed  on  the  appellant.  In  my 
opinion  the  correction  was  lawful — it  was  moderate,  reasonable, 
and  inflicted  with  a  proper  instrument.  There  was  no  excess, 
as  the  blow  on  the  wrist  was,  I  think,  a  misadventure,  and  in  any 
case,  was  of  no  serious  consequence.  The  justices  should,  there- 
fore,  I  think,   have  dismissed  the  complaint.     The  conviction 


256  QUEENSLAND  JUSTICE   OF  THE   PEACE. 

Smith  v.  0|Bybne  therefore  must  be  quashed,  and  the  fine  and  costs  paid  by  the 
*^'"_!_  ^  ''"^  appellant  returned  to  her.     Costs  against  the  respondent.    No 
Chubb  J.         pQgtg  against  the  magistrates. 

Solicitors  for  appellant :  Roberts  <k  Leu. 

Solicitor  for  magistrates  :    T.  G.  Fraser,  Crown  Solicitor. 


1894. 

Fehrvary. 


[Full  Coubt.] 

REGINA  V.  JACK. 

Q.L.J.  60. — Note. — 29  Vic,  No.  13,  ss.  48,  51,  are  repealed,  see  now  s.  668  of 
Criminal  Code.  Instead  ol  Order  XXXI.,  r.  4,  ol  Crown  Rules,  see  now  Criminal 
Practice  Rules,  0.  IX.,  r.  3,  Wilson  &  Graham's  Code,  p.  398.  55  Vic,  No.  24, 
s.  4,  is  repealed,  see  now  s.  212  of  Criminal  Code.  Compare  also  s.  584  of 
Criminal  Code.] 


Criminal  Practice  Act  of  1865  (29  Vic,  No.  13),  ss.  48,  51—0. 
XXXI.,  r.  4 — Appeal — Criminal  Law  Amendment  Act  of  1891 
Griffith  G.J.  (55  yic.^  No.  24),  s.  4 — Limitation  of  time — Arrest. 

Harding  J. 

Seal  J.  As  a  general  rule,  a  Crown  Case  Eeserved  for  the  opinion  of  the  Supreme  Court 

will  not  be  heard  unless  the  papers  are  delivered  to  the  Judges  four  clear  days 
before  the  hearing,  as  prescribed  by  the  Order  XXXI.,  r.  4  (Grown  Rules). 

When  a  man  is  apprehended  on  a  charge  of  an  oHence  the  nature  of  which  is 
such  that  upon  an  information  charging  him  with  it  he  might  be  convicted  of  the 
offence  with  which  he  is  actually  charged  in  the  information,  that  apprehension  is 
a  commencement  of  the  prosecution  for  the  latter  offence. 

On  a  charge  of  an  offence  under  s.  4  of  The  Criminal  Law  Amendment  Act  of 
1891,  proof  by  parol  that  the  prisoner  was  apprehended  on  a  charge,  then  stated  to 
him,  of  rape  on  the  same  person,  held  sufficient  evidence  of  the  commencement  of 
the  prosecution. 

JR.  V.  Phillips  (E.  &  E.  369)  explained. 

Case  stated  for  the  opinion  of  the  Court  by  Miller  D.C.J. 

The  prisoner,  an  aboriginal,  was  tried  at  the  Criminal  Sittings 
of  the  District  Court,  at  Rockhampton,  on  9th  January  last,  on 
a  charge  of  attempted  rape  on  a  girl  aged  4J  years.  At  the  close 
of  the  evidence,  which  went  to  show  that  the  offence  was  com- 
mitted on  9th  November,  Mr.  Lilley,  who  appeared  for  the  prisoner, 
asked  the  judge  to  direct  the  jury  to  bring  in  a  verdict  of  not 
guilty,  on  the  ground  that  there  was  no  evidence  that  the  prose- 
cution was  commenced  within  two  months  of  the  commission  of 
the  offence.  His  Honour,  in  stating  the  case,  said  that  the  only 
evidence  of  the  commencement  of  the  prosecution  was  that  of 


CRIMINAL  REPORTS,   1860-1907.  257 

the  arresting  constable,  who  deposed  that  he  arrested  the  prisoner     Bbqika  v.  Jack. 

on  the  9th  November  on  a  charge  of  rape  committed  on  the  girl. 

No  warrant  or  information  was  used  in  the  initiatory  proceedings, 

or  produced  or  tendered  in  Court.     At  the  Crown  Prosecutor's 

request,   His  Honour  allowed  the  case  to  go  to  the  jury,  and 

reserved  the  point  for  the  Full  Court.     Prisoner  was  convicted, 

and  His  Honour  remanded  him  for  sentence  until  the  next  sittings 

of  the  District  Court  in  Rockhampton,   and  in  the  meantime 

committed  him  to  prison,  allowing  him  bail  if  he  could  obtain  it. 

The  points  for  the  consideration  of  the  Court  were  :   (1)   Is  it 

necessary  for  the  Crown  to  prove  in  an  offence  under  The  Criminal 

Law  Amendment  Act  of  1891  that  the  prosecution  was  commenced 

within  two  months  after  the  commission  of  the  offence  ?    (2)  Was 

the  evidence  of  the  arresting  constable  sufficient  to  prove  the  date 

of  the  commencement  of  the  prosecution  ? 

Byrnes  A.G.,  and  King  for  the  Crown. 
Lilley  for  the  prisoner. 

Griffith  C.J.  pointed  out  that  the  papers  had  not  been  de- 
livered four  days  before  the  sitting  of  the  Court. 

Lilley  :  I  understand  the  jiidge  who  tried  the  case  has  been 
away  on  circuit,  and  the  preparation  of  the  case  delayed.  I  ask 
the  Court  to  waive  the  rule  in  this  instance. 

Griffith  C.J.  :  Order  31,  rule  4,  provides  that  when  a  question 
is  reserved  by  a  Court  of  Criminal  Jurisdiction  for  the  Supreme 
Court  the  case  is  to  be  delivered  to  the  Registrar,  and  that  the 
Registrar,  or  if  the  question  was  reserved  on  the  application  of 
the  prisoner's  counsel,  the  prisoner,  must  cause  office  copies  of  the 
case  to  be  delivered  to  the  Judges  and  to  each  party  four  days  at 
least  before  the  case  is  to  be  heard.  The  object  of  the  rule,  of 
course,  is  that  in  a  matter  involving  the  liberty  of  the  subject 
the  Judges  may  have  an  opportunity  of  reading  the  case  at  their 
leisure,  and  considering  the  points  for  decision  before  the  argu- 
ment. That  being  so,  the  rule  ought  to  be  observed  unless  satis- 
factory reason  is  given  for  the  default  in  the  delivery  of  the  copies. 
In  the  present  case  the  papers  came  direct  from  the  Judge,  and  it 
is  to  be  presumed  that  he  used  all  expedition  in  the  matter,  and 
in  any  case  the  parties  ought  not  to  suffer  for  any  want  of  ex- 
pedition on  the  part  of  the  Judge.  As  the  question  involves  the 
liberty  of  the  subject,  I  think  we  ought  to  hear  the  case,  but  it 
should  be  understood  that  as  an  ordinary  rule  cases  will  not  be 


258  QUEENSLAND   JUSTICE   OF   THE    PEACE. 

Eeoina  V,  Jack,    heard  unless  the  papers  are  delivered  to  the  Judges  four  clear 
days  before  the  case  comes  on  for  hearing. 

Lilley  submitted  that  there  was  no  evidence  of  the  date  on 
which  the  prisoner  was  first  brought  before  the  justices.  He  was 
arrested  on  a  charge  of  rape,  and  there  was  no  evidence  that  the 
prosecution  was  commenced  until  9th  January,  when  an  informa- 
tion was  presented  in  the  District  Court  for  an  attempted  rape. 
The  arrest  is  not  the  commencement  of  the  prosecution.  R.  v. 
Phillips,  R.  &  R.  369  ;  R.  v.  Parker,  33  L.J.  (M.C.)  135.  Laying 
an  information  is  the  commencement  of  the  prosecution.  It  is 
not  always  necessary  to  have  a  %vritten  information.  S.  42  of 
The  Justices  Act  says  proceedings  are  to  be  commenced  by  a 
complaint.  There  was  no  evidence  that  the  proceedings  were 
commenced  in  that  way.  In  R.  v.  Hull,  2  F.  &  F.  16,  it  was  held 
that  the  issue  of  a  warrant  was  not  evidence  of  the  commencement 
of  the  prosecution.  R.  v.  Brooks,  2  C.  &  K.  402  ;  1  East,  P.O., 
186.  The  arrest  was  simply  the  detention  of  the  person  for  the 
safety  of  the  pubUc.  The  prosecution  commenced  with  the  pro- 
ceedings in  Court. 

King  contended  that  the  oims  was  on  the  prisoner  to  prove 
that  the  prosecution  had  not  been  properly  initiated.  The  Crown 
Prosecutors  must  be  presumed  to  have  performed  their  duties 
properly  until  the  contrary  was  proved. 

[Griffith  C.J.  :  I  am  not  acquainted  with  any  such  rule.] 

The  arrest  is  a  step  in  the  prosecution,  and  consequently  the 
prosecution  was  commenced  within  the  time  prescribed  by  the  Act. 

Lilley  in  reply  :  The  arrest  might  be  a  step  in  the  prosecution, 
but  it  is  no  part  of  it.     Austin  v.  Dowling,  L.R.  5  C.P.  534. 

"   '         ■  Gkiffith  C.J.  :    The  prisoner  was  charged,  under  the  4th  sec- 

tion of  Th^  Criminal  Law  Amendment  Act  of  1891,  with  attempting 
to  commit  an  ofience  upon  a  girl  under  the  age  of  12  years.  That 
section  provides  that  any  prosecution  for  any  offence  under  it 
must  be  commenced  within  two  months  after  the  commission  of 
the  offence.  It  was  contended  by  Mr.  King  that  the  onus  was 
on  the  prisoner  to  show  that  the  prosecution  had  been  begun  after 
the  two  months,  but  all  the  cases  referred  to  were  to  the  contrary 
effect.  The  general  principle  laid  down  is  that  the  information 
must  disclose  the  committal  of  an  offence  within  the  cognisance 
of  the  Court  both  as  to  time  and  place.  It  appears,  however, 
that  under  such  statutes  it  is  not  necessary  to  allege  in  the  inform- 
ation  the  date  of  the  commencement  of  the  prosecution,  but  it 


CKIMINAL  REPORTS,   1860-1907. 


259 


also  appears  that  when  an  objection  has  been  taken  that  the 
prosecution  had  not  been  commenced  within  the  prescribed  time, 
•effect  has  been  given  to  it.     The  evidence  as  to  the  commencement 
■of  the  prosecution  in  this  case  is  this  : — Within  six  days  after  the 
offence  was  committed,  the  prisoner  was  arrested  by  a  constable, 
who  informed  him  that  it  was  for  an  offence,  which  he  described 
as  rape,  upon  the  child  on  whom  the  offence  was  committed.     It 
was  suggested  that  the  offence,  of  which  he  was  ultimately  con- 
victed, was  not  that  on  which  he  was  arrested,  but  that  difference 
•does  not  constitute  any  objection  if  the  prosecution  was  com- 
menced within  the  prescribed  time.     It  may  be  taken,  therefore, 
that  if  the  arrest  of  the  prisoner  on  that  charge  was  the  com- 
mencement of  the  prosecution  for  the  offence  of  which  he  was 
■convicted,   the   prosecution  was   commenced  in  sufficient  time. 
The  contention  for  the  prisoner  was  substantially  that  a  prosecu- 
tion must  be  commenced  by  laying  a  complaint  before  a  justice, 
and  that  the  apprehension  of  a  prisoner  on  a  charge  communicated 
to  him  by  the  constable  is  no  evidence  of  a  previous  complaint 
before  a  justice,  nor  of  itself  a  commencement  of  the  prosecution, 
nor  a  step  in  the  prosecution.     If  that  proposition  were  sustained, 
the  conviction  would  have  to  be  quashed.     Consider  the  object 
■of  the  statute.     The  offence  is  one  which  is  easily  charged,  and 
substantial  proof  of  which  is  soon  lost,  and  it  has  often  been  said 
that  it  is  hard  to  disprove.     The  object  of  this  provision  is  to 
prevent  stale  charges,  and  to  make  the  prosecution  follow  as  soon 
as  possible  on  the  commission  of  the  offence.     What,  then,  is  the 
meaning  of  "  the  commencement  of  the  prosecution  "  ?     If  we 
are  bound  by  any  decisions  to  hold  that  the  term  "  prosecution  " 
is  a  term  of  art  having  a  technical  meaning,  we  must  follow  those 
decisions.     But  the  cases  that  have  been  cited  do  not  appear  to 
me  to  lay  down  any  strict  or  technical  interpretation  of  the  term 
"  prosecution."     The  earliest  case  was  that  in  East's  Pleas  of  the, 
■Grown.     Then  came  the  case  of  R.  v.  Phillips  in  Russell  and  Ryan. 
In  the  days  when  those  cases  were  heard  there  was  no  Court  for 
dealing  with  Crown  cases  reserved,  but  it  was  the  practice  for  the 
judges  to  consult  together  and  to  make  a  recommendation  to  the 
■Secretary  for  State  if  they  thought  that  a  conviction  should  not 
be  upheld.     The  words   "  commencement  of  the  prosecution," 
used  in  the  Queensland  Act,  are  words  often  used  in  old  statutes, 
and  in  construing  their  meaning  regard  must  be  had  to  what  was 
the  law  about  the  commencement  of  prosecutions  in  those  days. 
In  2  Hale's  Pleas  of  the  Grown,  p.  72,  it  is  said  :    "  Touching  their 


Reoima  v.  Jack. 
Griffith  O.J. 


260 


QUEENSLAND   JUSTICE   OF   THE   PEACE. 


Begina  v.  Jack. 
Griffith  C.J. 


Harding  J. 
Keal  J. 


arrests  or  apprehending  them  "  (i.e.,  offenders),  "  this  is  the  first 
instance  "  (i.e.,  beginning)  "  of  their  prosecution."  The  olcJ 
doctrine  of  hue  and  cry  is  an  illustration  of  the  fact  that  the 
ordinary  way  in  which  a  prosecution  was  commenced  was  by 
apprehension  of  the  offender.  I  think,  then,  that  we  may  very 
well  understand  that  the  Legislature  when  in  the  old  statutes 
they  used  the  term  "  prosecution  "  used  it  with  reference  to  what 
was  then  understood  to  be  the  ordinary  means  of  bringing  an 
offender  to  justice,  and  that  we  are  not  precluded  from  holding 
that  under  this  statute  also  the  arrest  was  the  beginning  of  th& 
prosecution.  That  seems  to  be  the  oridnary  meaning  of  the  term, 
and  this  construction  appears  to  be  supported  by  the  older  author- 
ities. The  case  of  B.  v.  Phillips,  R.  &  R.,  369,  was  relied  on  as 
authority  against  this  view.  The  marginal  note  of  that  case  is, 
"  Proof  by  parol  that  the  prisoner  was  apprehended  for  treason 
respecting  the  coin  within  the  three  months  will  not  be  sufficient, 
&c."  On  looking  into  the  report  itself,  however,  it  appears  that 
the  head-note  is  inaccurate.  The  prisoner  was  apprehended  on 
a  charge  of  "  high  treason."  At  that  time  certain  offences- 
against  the  coinage  law  were  made  high  treason  by  statute.  All 
that  the  Court  decided  was  that  evidence  of  apprehension  upon  a 
charge  of  "  high  treason  "  generally  was  not  sufficient  evidence 
that  the  prisoner  was  apprehended  for  the  offence  against  the 
coinage  laws  for  which  he  was  indicted.  It  appears  in  the  present 
case  that  within  two  months  of  the  committal  of  the  offence  the 
offender  was  arrested  on  the  charge  of  rape  on  the  same  child.  I 
think  that  it  was  a  fair  inference  that  he  remained  in  custody  on 
that  charge  until  brought  before  the  jury  and  convicted.  It 
seems  to  me,  therefore,  that  there  was  sufficient  evidence  that 
the  prosecution  was  commenced,  in  the  sense  in  which  the  term  is 
used  in  the  statute,  within  the  time  prescribed.  On  the  grounds 
that  I  have  stated,  I  think  the  conviction  ought  to  be  affirmed. 

Habdikg  and  Real  JJ.  concurred. 

Solicitors  for  prisoner  :    Chambers,  Bruce  <Ss  McNab. 


CRIMINAL  REPORTS,   1860-1907. 


261 


[Full  Court.] 

REGINA  V.  MANGIN. 

16  Q.L.J.  63.— Note.— 31  Vic,  No.  13,  s.  64,  is  repealed,  see  now  s.  10  of  Criminal 
Law  Amendment  Act  of  1894  (58  Vic,  No.  23)  not  identical.] 

Criminal   law — Evidence  and  Discovery  Act   (31    Vic,   No.    13), 
s.  64 — Untrue  representation — Confession. 

M.  was  charged  with  having  stolen  certain  gold,  the  property  of  the  Mount 
Morgan  Company.  G.,  a  private  detective,  who  had  worked  himself  into  M.'s 
•confidence  gave  evidence  that  he  told  M.  that  he  came  from  S.  Africa,  and  had 
done  business  in  diamonds,  where  a  fellow  could  make  a  little  money  if  he  were  so 
inclined.  M.  replied,  "a  man  can  make  a  little  money  here  if  he  goes  the  right 
way  about  it."  G.  then,  by  means  of  false  statements,  induced  M.,  by  promising 
io  participate  in  the  gold  robberies,  to  admit  that  he  had  in  his  possession  some 
gold  scraped  from  the  Company's  retorts.  The  statements  were  admitted  to  be 
false.      The  evidence  was  admitted,  and  the  prisoner  convicted. 

Held,  by  Harding  and  Beal  JJ. ,  that  these  representations  being  untrue,  and 
being  made  after  the  subject  matter  of  the  charge  had  been  taken,  all  subsequent 
material  confessions  of  M.  were  inadmissible  in  evidence,  as  being  induced  by  such 
false  statements,  and  that  the  conviction  must  be  annulled. 

Case  stated  for  the  consideration  of  the  Court  by  Miller  D.C.J. 

The  prisoner,  Reuben  Mangin,  was  tried  in  Rockhampton  for 
having  on  the  lith  September  last,  at  Mount  Morgan,  stolen 
loz.  lOdwt.  of  gold,  the  property  of  the  Mount  Morgan  Company, 
and  for  having  on  the  20th  of  the  same  month,  also  at  Mount 
Morgan,  stolen  18oz.  of  amalgam  and  2  oz.  19  dwt.  18gr.  of  gold 
belonging  to  the  Company.  He  was  convicted  on  both  counts. 
The  principal  witness  against  him  was  F.  W.  Gabriel,  a  private 
•detective  employed  by  the  Company.  Gabriel  had  lived  at  the 
same  hotel  as  the  prisoner,  and  had  by  gradually  working  himself 
into  the  prisoner's  confidence  gained  sufficient  evidence  to 
associate  him  with  the  gold  steahng.  In  the  course  of  the  trial 
he  gave  evidence,  in  which  he  stated  that  on  the  7th  September 
lie  had  a  conversation  with  Mangin,  who  asked  him  where  he 
■came  from.  By  that  time  he  was  on  familiar  terms  with  Mangin. 
Gabriel  said  that  he  came  from  South  Africa,  where  he  had  been 
■doing  a  little  business  among  the  diamonds,  and  where  a  fellow 
could  make  a  little  money  if  he  were  so  incHned.  That  statement 
he  said  in  the  witness-box  was  untrue,  inasmuch  as  he  had  done 
business  in  diamonds,  but  not  in  South  Africa.  He  continued 
to  say  that  Mangin  repHed  that—"  A  man  can  make  a  little 
money  here  if  he  goes  the  right  way  about  it,"  and  described 
how  by  representing  himself  to  Mangin  as  a  man  who  would 


1894. 
February. 

Harding  J. 
Real  J. 


262  QUEENSLAND  JUSTICE  OP  THE   PEACE. 

Regina  v.  Mangin  participate  in  the  gold  robberies,  he  had  induced  him  to  admit  that 
some  gold  in  Mangin's  possession  had  actually  been  scraped  out 
of  the  retort  at  Mount  Morgan.  On  Gabriel  giving  this  evidence, 
Mr.  Lilley,  who  was  appearing  for  the  prisoner,  submitted  that 
under  the  64th  section  of  The  Evidence  Act,  the  evidence  was 
inadmissible,  inasmuch  as  the  admissions  from  the  prisoner  were 
induced  by  untrue  representations.  A  note  of  the  point  was  taken 
by  the  Judge,  and  it  was  now  brought  under  the  notice  of  the 
Court  on  the  special  case  stated  by  His  Honour. 

Lilley,  for  the  prisoner :  Section  64  of  The  Evidence  ani 
Discovery  Act  is  pecuhar  to  Queensland.  The  only  decision  on  it 
is  R.  V.  Horrocks,  4  Q.L.J.  218.  The  representation  was  untrue,, 
and  admitted  by  Gabriel  to  have  been  made  to  secure  the 
prisoner's  confidence.  The  ownership  of  the  gold  was  not 
properly  proved.  There  was  no  evidence,  apart  from  the  con- 
fessions, that  the  gold  ^^as  taken  without  the  consent  of  the- 
directors.  R.  v.  Meehan,  8  S.C.R.  (N.S.W.)  289 ;  R.  v.  Thomfson 
(1893),  2  Q.B.,  12  ;  R.  v.  Windsor,  4  F.  &  F.  361 ;  Rex  v.  ParralL 
4  C.  &  P.  570. 

Byrnes  A.6.,  Power  and  King,  for  the  Crown  :  The  section 
does  not  apply  to  admissions  made  before  there  was  any  charge. 
Gabriel  was  a  private  of&cer,  not  a  person  in  authority.  The 
term  "  untrue  representation "  must  be  interpreted  to  mean 
any  misrepresentation  in  connection  with  the  offence  Avith  which 
the  man  is  actually  charged. 

HardiDg  J.  Haeding  J.  :    This  is  a  case  stated  by  the  learned  Judge  who 

presided  in  the  criminal  side  of  the  District  Court  holden  at  Rook- 
hampton  on  16th  January  last.  The  prisoner,  Reuben  Mangiii,, 
was  on  that  day  charged  with  the  larceny  of  1  oz.  10  dwt.  of  gold, 
and  the  larceny  of  18  oz.  of  amalgam  and  2  oz..  19  dwt.  of  gold, 
said  to  be  the  property  of  the  Mount  Morgan  Gold  Mining  Com- 
pany Limited.  The  case  shows  that,  unless  by  means  of  admis- 
sions made  by  the  prisoner,  the  case  was  not  proved  against  him. 
The  point  more  particularly  raised  by  this  case  is  as  to  the  untrue 
statement  which  is  said  to  have  been  made  by  Gabriel  to  the 
prisoner  before  the  taking  of  the  goods  alleged  to  have  been  stolen. 
That  statement  was  to  the  effect  that  he  came  from  South  Africa, 
and  that  he  had  been  there  doing  a  little  business  among  the 
diamond  fields.  Now,  nothing  of  the  kind  had  ever  occurred.. 
Mr.  Lilley  objected  to  that.  It  was  subsequent  to  that  that  the 
alleged  confessions  were  made,  upon  which  alone  the  conviction 


CRIMINAL  EEPORTS,  1860-1907.  263 

can  be  sustained.  The  learned  Judge  states  that  there  was  no  Kegina  v.  Mansin 
evidence  or  confession  made  by  the  prisoner  to  Gabriel  after  the  Harding  J. 
untrue  representation  rightly  admissible.  The  case  does  not  set 
out  other  untrue  statements  made  by  Gabriel  to  the  prisoner, 
but  it  attaches  as  part  of  the  case  the  notes  of  the  evidence,  and 
from  these  there  appears  to  have  been  a  false  statement  made  by 
Gabriel  to  the  prisoner  material  to  a  prosecution,  subsequently 
to  that  which  took  place  with  respect  to  the  gold,  which  had  been 
then  taken  and  was  then  in  the  possession  of  the  prisoner.  Now, 
these  facts  being  incorporated  with  the  case,  the  second  question 
raised  by  the  Judge — Was  there  any  evidence  that  the  property 
was  taken  without  the  consent  of  the  owners  ? — arises.  If  that 
part  of  the  evidence  is  read  into  the  case,  then  this  question  raises 
that  point — Was  there  any  evidence  that  the  property  was  taken 
without  the  consent  of  the  owners  ? — because  it  is  only  by  means 
of  confessions,  after  such  false  statements  as  I  have  indicated  has 
been  made,  that  any  such  evidence  was  brought  out  at  aU.  So 
that  I  think  that  the  point  is  open  to  us  without  deciding  whether 
or  no  this  statement  about  the  diamonds  so  long  before  the  occur- 
rence could  vitiate  the  matter,  or  be  a  good  reason  for  reversing 
the  judgment.  Now,  certain  misstatements,  which  I  do  not  find 
it  necessary  for  a  decision  to  point  out,  having  been  made  by 
Gabriel  to  the  prisoner,  a  certain  amount  of  confidence  having  been 
estabhshed  between  the  two,  and  arrangements  having  been  made 
between  them  that  they  should  obtain  substances  which  are 
retortable  into  gold  from  the  Company — that  being  the  case, 
and  substances  having  been  actually  obtained  by  the  prisoner, 
this  occurred  :— On  Wednesday,  Gabriel  says  he  saw  Mangin 
at  the  hotel  :  "  I  produced  some  notes.  I  went  into  his  bedroom. 
He  showed  me  some  pieces  of  what  I  took  to  be  gold,  which  he 
said  he  had  obtained  from  the  pipe  of  the  retort.  He  put  them 
into  a  small  box  which  I  gave  him.  He  also  showed  me  a 
pocket,  which  had  been  cut  out  of  a  pair  of  trousers,  with 
some  amalgam  in  it,  weighing  about  18  oz.  or  20  oz.  I  told 
him  he  was  getting  some  more  gold.  We  then  went  into  the 
bar."  "  I  told  him  I  was  getting  some  more  gold  " — a  false  state- 
ment. "  We  went  into  the  bar,  and  there  met  William  Russell. 
All  three  of  us  went  into  Mangin's  bedroom.  On  the  Avay  to  the 
bedroom  Mangin  said,  '  Are  you  sure  Russell  is  aU  right  ?  '  I  said, 
'  Yes.'  "  That  is  not  true.  There  is  a  further  misstatement. 
I  think  that  after  that,  at  all  events,  all  statements  made  by  the 
prisoner  were  affected  by  those  untrue  representations.     "  After 


264  QUEENSLAND  JUSTICE   OF  THE   PEACE. 

Kegina  v.  Manoin  this  they  went  into  the  bedroom,  and  he  (Mangin)  produced  a  bag 
Harding  J  containing  amalgam,  and  asked  Eussell  to  feel  the  weight  of  it." 
There  is  a  confession  that  he  had  in  his  possession  amalgam. 
"  There  was  some  conversation  which  I  don't  recollect.  We  went 
into  the  bar  and  had  a  drink.  Eussell  left.  Mangin  then  said 
if  I  had  been  here  two  months  ago  we  could  have  made  a 
couple  of  thousand  pounds  a  month."  There  is  another  con- 
fession, if  the  jury  put  a  certain  construction  on  it.  Further 
on  we  find  he  says  :  "  Going  through  the  bar  we  found  a  man 
lying  across  the  gateway  named  Joyce.  He  was  drunk.  I  said, 
'  You  can't  have  him  here ;  take  him  into  Mangin's  room.' 
Mangin  said,  '  Do  you  think  this  fool  is  shadowing  us  ?  '  "  There 
is  another  confession — that  is,  if  the  jury  chose  to  draw  a  certain 
conclusion  from  it.  "  I  replied,  '  It  might  be.'  Mangin  said, 
'  I  will  give  you  my  swag  to  take  care  of  to-night.'  "  There  is 
another  confession.  "  I  saw  Mangin  at  Mills'  Hotel  on  the 
21st  (Thursday),  and  he  showed  me  a  piece  of  metal  which  he  said 
was  stuff  taken  from  the  retort."  Then  there  is  other  evidence  to 
the  same  effect.  As  I  have  already  said,  that  amounts  to  the 
making  of  a  representation  by  Gabriel  pertinent  to  the  matter  after 
the  subject  matter  of  the  charge  had  been  taken  and  the  crime 
committed  and  completed,  whatever  it  was.  That  being  so, 
I  think  that  the  learned  Judge  below  was  right  when  he  did  not 
think  the  evidence  was  admissible,  but  he  admitted  it  on  pressure 
from  the  Crown,  subject  to  a  case  to  be  reserved.  I  think  the 
evidence  was  wrongly  admitted,  and  consequently  that  any 
conviction  which  followed  upon  it  was  bad.  The  form  of  the 
order  should  be  that  the  judgment  be  annulled,  and  an  entry  be 
made  on  the  record  and  on  the  indictment  that  the  prisoner 
ought  not,  in  the  judgment  of  the  Judges,  to  have  been  convicted 
of  the  felony  aforesaid. 

Eeal  J.  Real  J. ;    I  am  of  the  same  opinion.     The  whole  of  the  state- 

ments were  made  before  any  material  admission  had  been  obtained. 
All  the  representations  Avere  made  by  Gabriel  before  he  got  one 
very  material  admission — that  he  (Mangin)  took  it  without  the 
consent  of  the  directors.  That  is  the  last  thing  of  all.  He  appears 
to  have  held  his  hand  until  he  got  that  admission  out  of  him, 
and  immediately  after  he  had  got  it  he  handed  him  over  to  the 
pohce.  That  appears  to  have  been  on  the  21st,  on  which  day 
Mangin  told  him  he  would  have  got  more,  but  the  directors  were 
there,  and  he  could  not  get  as  much  as  he  liked.  The  next  morning 
Gabriel  gave  him  into  custody.     All  the  representations  were 


CRIMINAL   REPORTS,    1860-1907. 


205 


made  before  he  got  that  admission,  and  that  is  material  evidence  i^'^'ginau.  Mangin 

relied  upon  in  the  case,  as  showing  the  taking  of  the  property  Real  J. 

without  the  consent  of  the  directors.     We  cannot  see  how  far  the 

jury  rehed  upon  that,  but  that  alone  would  be  sufficient  to  render 

the  conviction  bad.     For  the  same  reasons  as  those  given  by  my 

brother  Harding,  I  am  of  opinion  that  the  judgment  should  be 

annulled. 


Haeding  J.  :  Let  the  prisoner  be  discharged,  and  an  entry 
made  on  the  record  and  on  the  indictment  that  the  prisoner 
ought  not,  in  the  judgment  of  the  Judges,  to  have  been  convicted 
of  the  felony  aforesaid. 

Solicitors  :    Chambers,  Bruce  dh  McNab. 


Harding  J. 


[Full  Couet.] 
REGINA  V.  BUNNEY. 

[6  Q.L.J.  80.— Note.— See  now  s.  297  ot  Criminal  Code.  Sec.  49  of  Criminal 
Piactice  Act,  1865,  Is  repealed,  see  now  s.  688  of  Criminal  Code.  Offenders' 
Probation  Act  of  1886  is  repealed,  see  now  s.  656  of  Criminal  Code.] 

Crown  case  reserved — Manslaughter — Contributory  negligence. 

Where  the  death  of  a  person  is  caused  by  the  culpable  negligence  of  the 
prisoner,  the  fact  that  the  deceased  could  have  escaped  by  the  exercise  of 
reasonable  care  is  no  answer  to  a  charge  of  manslaughter. 

Crown  Case  Reserved  by  His  Honour  the  Chief  Justice, 
under  s.  49  of  The  Criminal  Practice  Act,  1865. 

The  case  stated  that  Frederick  Bunney  was  tried  at  the  Brisbane 
■Criminal  Sittings,  held  on  the  12th  March,  on  a  charge  of  the 
manslaughter  of  John  Plastow.  The  alleged  unlawful  act  or 
omission  causing  death  was  culpable  negligence  in  driving  a 
■spring  cart  along  a  public  highway.  It  appeared  from  the  evi- 
dence that  Plastow,  who  was  an  aged  and  somewhat  infirm  man, 
.  and  who  habitually  walked  with  the  aid  of  a  stick,  was  run  over 
■on  a  clear,  starlight  night  in  the  middle  of  the  road  by  a  spring- 
cart  which  was  being  driven  by  the  prisoner  in  the  opposite 
•direction  to  that  in  which  Plastow  was  walking  when  last  seen 
■alive,  a  few  minutes  before  the  collision.  There  was  sufficient 
■evidence  that  Plastow' s  death  resulted  from  culpable  negUgence 
on  the  part  of  the  prisoner.     For  the  defence  it  was  suggested  that 


1894. 

April 

Griffith  G.J. 
Chubb  J. 
Real  J. 


266  QUEENSLAND   JUSTICE   OF   THE  PEACE. 

Eegina  r.  Bonnet  the  deceased  was  under  the  influence  of  Uquor,  and  had  by  his  own 
~  negUgence  contributed  to  the  injury  which  was  the  cause  of  death- 

Evidence  tendered  to  establish  this  defence  was  objected  to  by 
the  Crown  Prosecutor,  but  admitted  as  being  relevant  to  the 
question  of  the  degree  of  the  prisoner's  negligence,  the  learned 
Judge  stating  that  he  would  put  a  specific  question  to  the  jury 
as  to  the  existence  of  contributory  negligence,  of  which  there 
was  some  slight  evidence.  Two  questions  were  accordingly  put 
to  the  jury  : — 1.  Was  Plastow's  death  caused  by  the  culpable 
negligence  of  the  prisoner  ?  2.  Was  there  contributory  neghgence 
on  Plastow's  part  ?  both  of  which  questions  they  answered  in  the 
affirmative.  -  It  was  contended  by  the  prisoner's  counsel  that 
these  findings  amounted  to  a  verdict  of  not  guilty,  but  Griffith  C.J. 
directed  the  jury,  following  the  cases  of  B.  v.  Swindall,  2  C.  &  K., 
230  ;  R.  y.  Hutchinson,  9  Cox,  555  ;  E.  v.  Jones,  11  Cox,  544; 
and  JR.  v.  Kew,  12  Cox,  355,  that  upon  the  findings  they  should 
find  the  prisoner  guilty,  which  they  accordingly  did.  At  the 
request  of  the  prisoner's  counsel  he  reserved  for  the  opinion  of 
the  Supreme  Court  the  question  whether  he  ought  to  have  directed 
the  jury  to  find  a  verdict  of  not  guilty.  The  question  for  the 
Court  was  whether  he  was  right  in  directing  the  jury  that  on  the 
facts  as  found  by  them  the  prisoner  was  guilty  of  manslaughteir 
or  whether  he  ought  to  have  directed  a  verdict  of  not  guilty.  His 
Honour  sentenced  the  prisoner  to  four  months'  imprisonment 
in  Brisbane  Gaol,  but  suspended  the  execution  of  the  sentence 
under  The  Offenders'  Probation  Act  of  1886,  and  prisoner  had 
been  discharged  from  custody  upon  recognisances  under  the 
provisions  of  that  Act. 

Sydes,  for  the  prisoner,  cited  Beven  on  Negligence,  128  ;  E.  v. 
Birchall,  4  F.  &  F.,  1087  ;  R.  v.  Hutchinson,  9  Cox,  555  ;  R.  v. 
Mastin,  6  C  &  P.,  396. 

Power,  for  the  Crown,  was  not  called  upon. 

Chubb  J.  Chubb  J.  :    In  this  case  the  prisoner  was  charged  with  the 

manslaughter  of  one  Plastow,  and  the  manslaughter  was  alleged 
and  proved  to  have  been  caused  by  the  culpable  negligence  of 
the  prisoner.  Two  questions  were  put  to  the  jury  on  the  point 
raised  by  the  prisoner's  counsel  as  to  whether  contributory 
negligence  would  be  a  defence  to  a  charge  of  manslaughter  by 
negligence.  The  jury  in  answering  the  first  question  found  that 
the  deceased's  death  was  caused  by  the  culpable  negligence  of  the 
prisoner.     That  would  be  sufficient,  if  it  stood  by  itself,  to  support 


CRIMINAL  REPORTS,   1860-1907. 


267 


the  case  for  the  Crown.  The  second  question  asked  was  whether  Eegina^.Bunney: 
there  was  contributory  negUgence  on  Plastow's  part.  The  chTbb  J. 
difficulty  which  might  perhaps  have  arisen  on  that  question  has 
been  disposed  of  by  the  admission  made  by  Mr.  Sydes,  that  this 
question  was  to  be  understood  to  mean,  and  was  so  put  to  the  jury 
— was  it  possible  by  the  exercise  of  reasonable  care  for  the  deceased 
to  have  got  out  of  the  way  ?  If  the  jury  had  answered  the 
question  in  that  form  affimatively  it  would  not  have  been  an 
answer.  It  would  not  be  an  answer  in  a  civil  case,  and  it  certainly 
would  not  be  an  answer  in  a  criminal  case.  A  definition  of 
contributory  negligence  will  be  found  in  Smith  on  the  Law  of 
Negligence,  at  page  227 — "  Contributory  negligence  in  law  is  that 
sort  of  negUgence  which,  being  a  cause  of  injury,  is  of  such  a 
character  that  the  defendant  could  not  avoid  the  effects  of  it." 
Then  he  goes  on  to  say,  "  When  the  plaintiff  has  proved,  according 
to  his  evidence,  that  the  act  of  the  defendant  has  caused  the  injury 
of  which  he  complains,  the  defendant  in  his  turn  may  prove 
that  the  plaintiff,  by  his  own  act,  contributed  to  cavise  the  injury, 
and  that  the  plaintiff  might  by  the  exercise  of  ordinary  care  have 
avoided  the  consequences  of  the  defendant's  negligence.  But 
such  proof  is  not  of  itself  sufficient  to  destroy  the  plaintiff's  claim, 
and  the  defendant  must  go  further  and  show  that  the  plaintiff's 
negligence  was  of  such  a  character  that  the  exercise  of  ordinary 
care  upon  the  defendant's  part  would  not  have  prevented  the 
plaintiff's  negligent  act  from  causing  the  injury — that  is  the 
sort  of  negligence  ^^hich  the  law  calls  '  contributory  negligence.'  " 
Now,  in  the  case  stated  by  the  learned  Chief  Justice,  it  was  stated 
that  there  was  sufficient  evidence  that  Plastow's  death  resulted 
from  culpable  negligence  on  the  part  of  the  prisoner.  His  Honour 
further  said  there  was  some  slight  evidence  as  to  the  existence  of 
contributory  negligence.  That  must  be  understood  to  mean 
s  Dme  slight  evidence  that  possibly  deceased  might  have  got  out  of 
the  way.  As  I  have  said  before,  that  would  not  be  an  answer  in  a 
ci^-il  action,  and  it  could  not  be  taken  to  be  an  answer  to  an 
information  for  causing  the  death  by  negligence  of  a  fellow-creature. 
It  is  possible,  though  I  do  not  decide  it  now,  that  the  defendant 
would  have  been  entitled  to  acquittal  if  he  could  have  shown 
that  he  could  not  have  got  out  of  the, way  by  the  exercise  of  reason- 
able care,  but  on  the  case  as  it  stands  I  think  the  conviction  was 
right,  and  that  the  judgment  ought  to  be  affirmed. 

Real  J.  :    I  am  of  the  same  opinion.     I  think  that  although  it 
may  be  that  the  contributory  negligence  which  would  free  a  man 


Eeal  X- 


268  QUEENSLAND  JUSTICE   OP   THE   PEACE. 

Begina  i;.  BuNNEY  from  civil  liability  would  also  free  him  from  criminal  liability, 
Real  J.  that  would  be  merely  a  coincidence.     It  would  not  free  a  man 

from  criminal  liability  simply  because  it  freed  him  from  civil 
liability.  In  all  the  criminal  cases  cited  by  Mr.  Sydes,  except 
one,  the  defence  would  not  give  protection  in  the  Civil  Court. 
In  the  present  case  it  was  manifest  that  it  was  the  negligence  of 
the  prisoner  that  caused  the  injury,  not  the  subsequent  act  of 
negligence  on  the  part  of  the  deceased — as  in  the  case  of  a  man 
stopping  in  front  of  a  runaway  engine.  The  injury  there  would 
be  due  to  the  negligence  of  the  deceased,  because  he  would  know 
that  it  was  out  of  the  power  of  the  engine-driver  to  stop  the 
engine,  and  still  deliberately  stopped  in  front  of  the  engine. 
In  that  case  the  jury  would  answer  "  no "  to  the  question, 
was  the  injury  caused  by  the  culpable  negligence  of  the  driver  ? 
The  best  test  seems  to  be,  was  the  injury  or  death  caused  by  the 
culpable  negUgence  of  the  prisoner.  If  it  were,  it  seems  to  me 
that  the  liability  would  be  there.  It  seems  to  me  also,  as  has  been 
pointed  out  by  Mr.  Justice  Chubb,  that,  looking  at  the  definition 
that  has  been  given  in  civil  cases,  the  circumstances  of  this  par- 
ticular case  were  such  that  there  would  be  no  relief  from  civil 
liability.  All  that  was  alleged  in  this  case  was  that  the  deceased, 
had  he  been  vigilant  or  had  he  been  watchful,  would  have  been 
able  to  see  something  which  would  have  enabled  him  to  get  out 
of  the  way  ;  but,  as  I  understood  counsel,  it  was  proved,  and  it 
was  relied  on,  to  show  that  deceased  was  negligent,  that  he  was 
in  the  habit  of  walking  looking  down,  and  it  was  also  alleged  that 
he  was  in  a  state  which  would  preclude  him  from  exercising  that 
observation.  That  being  so,  it  is  perfectly  clear  that  the  second 
part  of  the  definition  with  regard  to  civil  liability  would  not  have 
been  applied  to  that.  It  might  be  that  he  was  guilty  of  negUgence 
in  placing  himself  in  that  state,  but  that  was  not  an  act  of  neglig- 
ence causing  death  or  injury  whatsoever  had  prisoner  taken 
ordinary  care.  So  that  even  if  the  definition  of  negligence  which 
Mould  involve  criminal  liability  is  to  be  taken  to  be  precisely  the 
same  as  that  which  involves  civil  liability,  there  would  still  be  no 
relief  of  liability  in  this  case,  and  the  conviction  would  have  to  be 
affirmed.  Of  course  I  do  not  say  whether  it  is  or  is  not  the  same. 
It  seems  to  me  that  if  it  is  the  same  it  is  only  a  coincidence,  and 
criminal  liability  is  not  to  be  measured  by  the  civil  liability, 
although  it  might  possibly  be  that  the  two  ran  precisely  in  the 
same  lines  on  some  occasions. 

-Griffith  C.J.  Griffith  G.J.  :    I  am  of  the  same  opinion.     An  attempt  was 


CRIMINAL  REPORTS,  1860-1907. 


2G9 


made  at  the  trial  to  set  up  that  the  rules  relating  to  civil  actions  BbQ'na  t).  BnuNEY 
for  negUgence  appUed  to  a  prosecution  for  manslaughter.  In  Griffith  C.J. 
deciding,  as  I  did,  I  followed  the  authorities,  which,  with  one 
exception,  and  that  only  the  dictum  of  a  very  learned  Judge, 
were  all  to  the  contrary.  I  am  of  opinion  that  the  principles 
which  would  excuse  the  defendant  in  an  action  for  negligence  are 
not  the  principles  which  should  apply  in  considering  whether  the 
prisoner  was  guilty  of  manslaughter.  I  entirely  agree  with  Mr. 
Justice  Real  that,  though  it  might  sometimes  happen  that  a  man 
would  be  free  from  both  criminal  and  civil  liability,  it  by  no  means 
follows  that  he  would  be  free  from  criminal  liabiUty  because  he 
was  free  from  civil  responsibility.  I  am  of  opinion  that  the  ques- 
tion of  contributory  neghgence  was  entirely  irrelevant,  and  that 
the  real  question  to  be  tried  by  the  jury  was — was  the  death 
caused  by  the  culpable  negligence  of  the  prisoner  ?  In  consider- 
ing that,  I  thought  that  the  evidence  relied  upon  as  showing 
contributory  neghgence  was  admissible,  though  irrelevant  as 
raising  a  substantive  defence  in  respect  of  negUgence.  I  think 
that  that  is  perhaps  not  the  best  term  to  be  used,  but  I  used  it  as 
the  term  employed  in  the  cases  cited.  I  think  a  better  word 
might  be  used,  if  it  were  necessary  to  leave  the  question  to  the 
jury,  but  apparently  it  was  not  necessary  to  do  so.  The  con- 
viction will  be  affirmed. 

SoUcitor :    J.  B.  Price. 


[Full  Cottet.] 
REGINA  V.  HOUSTON. 

[6  Q.L.J.  145.— Note.— 54  Vic,  No.  5,  is  repealed,  see  now  s.  1  of  Code,  definition 
of  "  clerli  or  servant,"  and  ss.  568  (1)  and  641  of  Code.  36  Vie.,  No.  8,  s.  1, 
is  repealed,  see  now  s.  396  of  Criminal  Code.  As  to  sentence  on  Crown  Case 
Reserved,  see  now  s.  668  of  Criminal  Code.] 

Crown  case  reserved — Embezzlement — General  deficiency — 54  Vic, 
No.  5—36   Vic,  No.  8,  s.  1 — Respite  of  sentence. 

A  member  and  paid  secretary  of  an  Oddfellows'  Lodge  may  be  convicted  of 
embezzling  sums  of  money,  the  property  of  the  lodge. 

On  a-oharge  of  embezzling  specific  sums,  evidence  of  a  general  deficiency  in  the 
accounts  is  admissible. 

SemUe,  that,  when  a  prisoner  is  convicted,  and  a  case  reserved  fov  the  opinion 


1894. 
itigust. 

Griffith  C.J. 
Harding  J. 
Real  J. 


270 


QUEENSLAND  JUSTICE   OP  THE   PEACE. 


Kegina  v.  o£  the  Full   Court,  the  sentence  should  either  be  respited  or  bail  allowed  until 

Houston.  judgment  is  given. 

Crown  Case  Resbeved  by  Noel  D.C.J,  for  the  opinion  of  the 
Court  on  certain  points  raised  in  the  course  of  the  trial  of  Robert 
James  Houston,  at  Cooktown,  on  1st  June  last.  Prisoner  was  a 
member,  and  the  paid  secretary,  of  the  Loyal  Captain  Cook 
Oddfellows'  Lodge,  Cooktown.  He  was  charged  in  three  separate 
counts  with  embezzling  specific  sums  of  money,  the  property  of  the 
lodge.  He  was  tried,  found  guilty,  and  sentenced  to  three  years' 
penal  servitude.  The  questions  submitted  to  the  Court  were 
whether  the  Judge  was  right  in  admitting  in  re-examination 
evidence  as  to  a  general  deficiency  in  the  accounts,  the  prisoner 
being  charged  with  the  embezzlement  of  specific  sums ;  and 
whether,  being  a  member  of  the  lodge,  the  prisoner  could  be 
convicted  of  embezzlement  of  its  funds. 

Harding  J.  pointed  out  that  authority  was  given  in  the  Act 
to  either  respite  or  postpone  sentence  pending  an  appeal.  That 
power  had  not  been  exercised  in  this  case,  and  it  seemed  to  him 
that  if  the  same  course  was  always  followed  a  man  might  be  made 
to  serve  a  sentence  when  the  point  to  be  decided  was  whether  he 
was  guilty  or  not. 

Dickson  for  the  Crown. 

■Griffith  C.J.  Griffith  C.J.  :    The  first  point  raised  in  the  case  is  whether 

evidence  of  a  general  deficiency  is  admissible  on  a  charge  of 
embezzling  a  specific  sum.  In  this  case  evidence  of  a  general 
deficiency  ^vas  tendered  in  the  examination-in-chief  and  rejected 
by  the  learned  Judge,  btit  afterwards  admitted  in  re-examination. 
Whether,  if  the  evidence  had  been  properly  rejected  in  chief,  it 
could  under  the  circumstances  have  been  admitted  in  re-examina- 
tion is  a  matter  on  which  I  express  no  opinion.  But  I  know  of 
no  authority  for  holding  that  evidence  of  a  general  deficiency  is 
not  admissible  in  chief  on  a  charge  of  embezzlement.  I  do  not 
know  of  any  authority  to  that  effect,  even  before  The.  Act  of 
1890  ;  and  since  that  Act  it  is  quite  clear  that  a  man  may  be 
■convicted  on  evidence  of  a  general  deficiency.  The  other  point 
is,  that  prisoner,  being  a  member  of  the  lodge,  could  not  be 
convicted  of  embezzlement  of  the  funds.  That  is  expressly  met 
by  The  Act  of  1872,  which  provides  that  a  person  who,  being 
one  of  two  or  more  beneficial  owners  of  money,  steals  it,  may  be 
convicted  as  if  he  had  not  been  a  beneficial  owner.  And  that  has 
been  held  to  apply  to  the  case  of  a  secretary  of  a  joint  stock  com- 


CRIMINAL   REPORTS,   1860-1907. 


271 


pany  although  he  himself  is  one  of  the  directors  of  the  company. 
Both  the  points  that  have  been  raised  on  behalf  of  the  prisoner 
therefore  fail.  The  case  has  not  followed  the  rules  in  stating 
whether  the  sentence  was  respited.  The  sentence  was  three 
years'  penal  servitude,  but  it  would  appear  that  the  Judge  gave 
the  prisoner  the  option  of  obtaining  bail,  and  authorised  him  to  be 
-admitted  to  bail.  Prisoner  was,  however,  unable  to  get  bail. 
If  the  case  had  followed  the  rules,  no  difficulty  would  have  arisen 
on  this  point.  I  do  not,  however,  think  it  necessary  to  express 
any  opinion  whether  the  Judge  was  bound  either  to  respite  the 
■sentence  or  to  postpone  execution  of  it.  I  think  that  in  most 
■cases  the  Judge  should  do  so,  if  not  in  all.  If  the  case  had 
precisely  followed  the  rules,  it  would  have,  I  think,  been  un- 
necessary to  say  anjiihing  on  the  subject.  The  conviction  ought 
to  be  upheld. 

Harding  J.  :  I  am  of  the  same  opinion.  With  regard  to  the 
question  of  respiting  judgment,  I  think  that,  when  a  Crown 
■case  is  reserved  under  The  Criminal  Practice  Act,  s.  48,  the  Judge 
should  either  respite  the  execution  of  the  judgment  or  allow 
the  prisoner  to  go  out  on  bail ;  and  if  bail  is  not  procurable,  then 
he  should  be  respited  in  such  a  manner  that  he  should  not  undergo 
any  part  of  his  punishment.  The  question  does  not  directly 
arise,  and  when  it  does  arise,  it  will  probably  be  in  very  different 
proceedings  from  this.  That  is  my  opinion  ;  and  that  is  the 
course  which  should  be  followed. 

Real  J.  :  I  am  of  the  same  opinion.  I  desire  to  express  no 
opinion  on  the  necessity  of  the  Judge  respiting  or  postponing 
sontence,  except  to  say  that  in  ordinary  circumstances  I  feel  it 
-would  be  quite  proper  to  do  so.  Whether  it  would  be  bad  if  the 
Judge  did  not  do  so,  I  express  no  opinion. 

Conviction  affirmed. 


Eeqina  v. 

HODSTON. 

Griffith  C.J. 


Harding  J. 


Real  J. 


272 


QUEENSLAND   JUSTICE   OF  THE   PEACE. 


1894. 

August. 

Griffith  C.J. 
Harding  J. 
Real  J. 


[Full  Coukt.] 
REGINA  V.  ROYLE. 

[6  Q.Ii.J.  146.— Note.— 29  Vic,  No.  6,  s.  76,  is  repealed,  see  now  s.  1  of  CriminaE 
Code,  definition  of  "  money,"  and  ss.  566  (5),  568  (1),  and  641  of  Criminal 
Code.] 

Larceny  Act  of   1865   (29    Vic,  No.   6),  s.   76— Embezzlement- 
Si  Vic,  No.  5,  s.  1. 

When  an  offence  under  s.  76  of  The  Larceny  Act  of  1865  relates  to  a  valuable 
security,   it  is   sufficient  to   allege   the  embezzlement  to  be  of  money  without 
specifying  any  valuable   security;    and  the  allegation,  so  far  as  it  relates  to  a, 
valuable  security,  will  be  proved  if  the  ofiender  is  proved  to  have  embezzled  any 
amount  or  part  of  the  particular  valuable  security. 

It  is  not  necessary  to  prove  that  the  deficiency  unaccounted  for  did  not  consist 
entirely  of  securities  where  the  sum  is  made  up  of  money  and  securities. 

Since  54  Vic,  No.  5,  it  is  immaterial  that  more  three  separate  sums  wer& 
included  in  the  deficiency. 

B.  V.  Keena,  L.B.  1  C.C.R.  113,  discussed. 

Cbown  Case  Resekved  by  Paul  D.C.J. 

A.  W.  Royle  was  employed  as  cashier  and  accountant  by 
Prosser,  Taylor  &  Co.  His  duties  as  cashier  were  to  receive- 
all  moneys,  cheques,  drafts,  &c.,  paid  to  the  firm,  and  deposit  the- 
same  in  the  bank  to  the  firm's  account.  His  duty  as  accountant 
was  to  keep  the  books,  and  especially  the  general  cash-book, 
bank  deposit  book,  and  demand  orders  deposit  book,  and  to  maker 
proper  entries  in  them  of  receipts  and  deposits.  A  Mr.  DeightorL 
was  also  in  the  employ  of  the  firm  as  assistant  book-keeper,  and 
his  duty  was,  under  prisoner's  directions,  to  write  up  the  general 
cash-book  from  the  rough  cash-book,  which  contained  entries  of  the 
receipts  of  all  moneys  received  by  the  firm  from  day  to  day. 
The  employees  had  authority  to  receive  money  in  the  warehouse- 
for  the  firm  in  the  way  of  business,  such  as  for  cash  sales,  &c.,  and 
their  duty  was  to  make  entries  of  such  payments  in  the  rough 
cash-book  and  hand  the  money  to  the  prisoner  as  cashier, 
Deighton  received  money  as  well  as  cheques,  &c.,  in  this  way,, 
and  he  always  handed  the  same  to  the  prisoner,  and  so  handed 
him  money,  cheques,  &c.,  in  April  last  and  during  previous  months.. 
The  entries  of  amounts  received  in  the  general  cash-book  for  the 
month  of  April  were  in  Deighton's  handwriting,  except  three 
which  were  written  by  the  prisoner,  but  all  the  entries  in  that 
book  of  deposits  made  in  the  bank  for  that  month  were  wTitten 
l)y  the  prisoner.     In  addition  to  the  entries  of  receipts  in  the 


CRIMINAL   REPOETS,    1860-1907.  273 

general  cash-book,  taken  by  Deighton  from  the  rough  cash-book,  Eeoina  v.  Eoyle. 
he  also  received  items  for  entry  from  the  prisoner,  but  where  the 
prisoner  obtained  them  Deighton  did  not  know.  Mr.  Horstmann, 
who  was  the  auditor  for  the  firm,  discovered,  on  examining  the 
books  in  May  last,  and  especially  the  general  cash-book,  that 
there  appeared,  according  to  that  book,  a  general  deficiency  in 
the  month  of  April  of  £794  4s.  6d.,  and  that  the  short  deposits 
commenced  in  November  last.  The  general  cash-book  for  that 
month  showed  £8,444  18s.  lOd.  as  received,  and  £7,650  as  de- 
posited, showing  a  deficit  of  £794  4s.  6d.  The  larger  proportion 
of  the  entries  of  the  amounts  purporting  to  have  been  received 
according  to  the  general  cash-book,  not  only  in  April  but  for  other 
previous  months,  would.  His  Honour  said,  consist  of  money 
orders,  cheques,  and  drafts,  but  all  were  entered  as  cash  in  the 
cash-books.  Mr.  Horstmann  could  not  discover  from  the  books 
the  individual  or  specific  items  of  which  the  deficit  was  composed, 
or  discover  any  specific  amount  received  by  the  prisoner  during 
April  or  any  previous  month  as  not  having  been  deposited  ;  but 
the  deficit  comprised  more  than  three  items,  and  he  (Mr.  Horst- 
mann) beheved  comprised  about  thirty  or  forty  items.  The 
prisoner  had  charge  of  the  cash-box,  and  after  he  left  the  firm, 
on  the  28th  May,  it  was  opened,  and  found  to  contain  £2  lis.  lid. 
cash  and  an  I.O.U.  of  one  of  the  employees  for  £11  10s.  After 
this  date  Mr.  CoUedge,  manager  of  the  firm,  saw  the  prisoner, 
and  asked  him  if  he  could  account  for  the  deficiency  in  the  books 
being  nearly  £800.  The  prisoner  said  he  knew  it  was  something 
Uke  that,  but  that  he  could  not  account  for  it,  nor  did  he  benefit 
by  it.  Mr.  Rutledge,  prisoner's  counsel,  at  the  close  of  the  case 
for  the  prosecution,  asked  His  Honour  to  direct  the  jury  to  find 
a  verdict  of  "  Not  guilty."  His  Honour  refused  to  do  that, 
but  asked  the  jury  to  answer  two  questions  as  well  as  to  deliver 
their  verdict.  The  jury  found  the  prisoner  guilty,  and  answered 
the  two  questions  in  the  affirmative— (1)  Was  the  amount  of  the 
general  deficiency  stolen  and  fraudulently  embezzled  by  the 
prisoner  ?  (2)  Did  that  amount  consist  of  money  as  well  as 
cheques  and  other  securities  ?  The  points  which  His  Honour 
reserved  at  Mr.  Rutledge's  request  were  :  (1)  That  there  was  no 
case  to  go  to  the  jury,  inasmuch  as  s.  1  of  the  Act,  54  Vic,  No.  5, 
was  Umited  to  money  and  did  not  provide  for  proof  of  the  em- 
bezzlement of  money  by  evidence  of  a  general  deficiency  in  a  case 
where  the  sums,  in  respect  of  which  a  general  deficiency  of  money 
was  alleged  to  arise,  consisted  partly  of  money  and  partly  of 


274 


QUEENSLAND  JUSTICE  OP  THE   PEACE. 


Griffith  C.J. 


Eegina  0.  EoYLB.  valuable  securities,  such  as  cheques,  drafts,  and  orders  for  the 
payment  of  money  not  shown  to  have  been  converted  into  money 
by  the  prisoner.  (2)  That  there  was  no  evidence  that  any  money 
had  been  paid  to  or  received  by  the  prisoner.  (3)  That  the  evi- 
dence showed  that  if  any  sums  of  money  had  been  paid  to  and 
received  by  the  prisoner,  more  than  three  such  sums  were  included 
in  the  general  deficiency.  His  Honour  deferred  passing  sentence 
until  the  Full  Court  had  given  a  decision  on  the  points  reserved. 
Dickson  for  the  Crown  ;   Rutledge  for  prisoner. 

Gkiffith  C.J.  :  The  prisoner  was  charged  with  embezzling 
the  sum  of  £794  from  his  employers  ^  On  his  trial  it  was  shown 
that  he  was  the  cashier  and  accountant  of  his  employers.  His 
duties  are  set  out  in  the  special  case.  The  general  cash-book 
was  intended  to  show  all  the  money  received  by  him.  Entries  , 
were  made  in  it  by  clerks  under  his  superintendence.  The 
book  was  not  for  the  most  part  in  his  handwriting,  but  during 
the  month  of  April  last  there  were  three  entries  in  his  handwriting. 
In  the  same  book  were  entered  statements  of  the  amounts 
deposited  in  the  bank,  which  for  the  month  of  April  were  aU  in  his 
handwriting.  The  books  were  kept  under  his  supervision. 
After  he  had  left  the  firm's  employ,  and  the  books  had  been 
examined,  he  was  informed  that  there  was  a  deficiency  of  nearly 
£800.  He  said  he  knew  it  was  something  like  that,  but  he  could 
not  account  for  it,  nor  had  he  benefited  by  it.  It  had 
been  contended,  though  I  doubt  very  much  whether  the 
point  is  raised  by  the  case,  that  there  was  no  evidence 
that  he  received  any  amount  larger  than  was  shown  to  have 
been  deposited  in  the  bank.  But  I  infer  from  the  evidence 
that,  though  the  entries  in  the  books  were  not  all  in  the 
prisoner's  handwriting,  they  were  all  made  with  his  cognisance 
and  knowledge,  and  therefore  they  operated  as  an  admission 
against  him.  I  draw  that  inference  from  all  the  facts  stated, 
not  as  a  necessary  inference,  but  an  inference  which  the  jury 
might  draw  from  all  the  facts  as  stated.  I  quite  agree  that  it  is 
not  sufiicient  to  show  that  the  books  were  kept  under  his  general 
superintendence.  It  must  be  shown  that  the  entries  were  made 
with  his  knowledge.  If,  therefore,  that  objection  was  intended 
to  be  raised,  which  on  the  face  of  the  case  stated  was  doubtful, 
I  think  it  failed.  Mr.  Rutledge  relied  also  on  the  case  of  R.  v. 
Keena,  L.R.,  1  C.C.R.,  113.  The  76th  section  of  The  Larceny 
Act  of  1865  provides,  that,  on  an  indictment  for  embezzlement, 
"  where  the  offence  shall  relate  to  any  money  or  any  valuable 


CRIMINAL   EEPORTS,   1860-1907.  275 

security,   it   shall   be   sufficient  to   allege   the   embezzlement   or  I^^gina  r.  Boyle. 

fraudulent  application  or  disposition  to  be  of  money  without       Griffith  C.J. 

specifying  any  particular  coin  or  valuable  security ;    and  such 

allegations,  so  far  as  regards  the  description  of  the  property,  shall 

be  sustained  if  the  offender  shall  be  proved  to  have  embezzled 

or  fraudulently  applied  or  disposed  of  any  amount,  although  the 

particular  species  of  coin  or  valuable  security  of  which  such 

amount  was  composed  shall  not  be  proved."     The  grammatical 

construction  of  that  section  is,  that,  when  the  charge  relates  to  a 

valuable  security,  it  is  to  be  sufficient  to  allege  the  embezzlement 

to    be    of    money,    without    specifying    any   particular    valuable 

security;    and  the . allegation  will  be  sustained  if  the  offender  is 

proved  to  have  embezzled  any  amount,  although  the  particular  coin 

or  valuable  security  of  which  it  is  composed  is  not  proved.     The 

section  was  taken  from  the  much  earlier  Act  of  7  Geo.  IV.,  Ch.  29, 

which  came  under  the  notice  of  the  Court  in  the  case  of  E.  v. 

Grove,  1   Mood  C.C.,  447,  a  case  which  has  often    been  cited  in 

cases  of  embezzlement  sought  to  be  proved  by  evidence  of  general 

deficiency.     The  plain,  Uteral  meaning  of  the  section  is,  that,  in 

charging   a   man   with   embezzlement  from  his   employer,   it  is 

enough  to   charge   him  with   embezzUng   money,   although   the 

evidence     might     show     that     he     took     money     or     valuable 

securities    or   both,    the    term    valuable     securities     including, 

by    its    definition,    cheques    and    drafts    and    other    securities. 

On  this  section  the  point  raised  by  the  prisoner's  counsel  is,  that 

what  was  received  by  the  prisoner  consisted  partly  of  cheques 

and  partly  of  money,  and  that  it  was  not  shown  that  what  he 

embezzled,   or  what  he  failed  to   account  for,   did  not  consist 

entirely  of  cheques.     It  is  quite  possible  that  he  paid  into  the 

bank  all  the  cash  that  he  received,  and  that  he  made  away  only 

with  cheques.     Apart  from  the  statute,  I  should  be  very  much 

incUned  to  think  that  it  would  be  open  to  the  jury,  upon  its  being 

proved  that  a  man  received  a  large  sum  of  money — using  the  word 

money  in  the  ordinary  sense,   as  consisting  of  cheques,  notes, 

orders,  and  coin — and  made  away  with  a  large  part  of  it,  to  infer 

that  the  part  which  he  made  away  with  consisted  in  part  of  cash. 

But,  assuming  that  that  was  not  so,  and  that  it  must  be  taken 

in  favour  of  the  prisoner  that  all  he  made  away  with  consisted 

of  cheques,  then,  there  being  no  evidence,  although  the  jury 

found  that  some  of  the  deficiency  consisted  of  money— there 

being  no  distinct  evidence  that  it  did  consist  of  money— Mr. 

Eutledge  reUed  on  Keena's  Case.     In  that  case  the  prisoner  was 


276  QUEENSLAND  JUSTICE   OP  THE    PEACE. 

Besina  v.  Boyle,  accused  of  embezzling  £16.  The  evidence  was,  that  he  received 
Griffith  C.J.  a  cheque  for  £16  for  his  master,  and  gave  a  receipt  for  it.  He 
did  not  account  for  it,  and  went  away.  That  was  practically  all 
the  evidence.  It  was  said  to  have  been  held  that  a  section 
corresponding  to  s.  76  of  our  Larceny  Act  would  not  justify  the 
allegation  of  the  embezzlement  of  money  when  it  was  only  a. 
cheque  that  had  been  embezzled,  and  there  was  no  proof  that  the 
prisoner  had  ever  cashed  it.  This  Court  is  not  technically  bound 
by  Keena's  Case,  but  I  think  we  ought  to  follow  it  unless  there  is 
some  strong  reason  to  the  contrary,  so  far  as  we  can  discover  the 
ratio  decidendi.  It  may  be  that  Lord  Chief  Justice  Cockburn 
and  A.  L.  Smith  J.  thought  that  the  Act  referred  only  to  cases 
in  which  what  was  actually  taken  was  taken  in  the  form  of 
money.  One  at  least  of  the  learned  Judges  was  of  opinion  that  the 
case  against  the  prisoner  failed  otherwise.  It  appears  to  me 
that  no  clear  principle  can  be  drawn  from  that  case  applicable 
to  such  a  case  as  the  present,  where  the  sum  alleged  to  have  been, 
embezzled  comprised  a  mixed  fund,  composed  partly  of  cheques, 
orders,  &c.  What  the  prisoner  took  was  part  of  a  mixed  fund, 
comprising  cheques  and  money,  and  it  appears  to  me  that  the 
Act  expressly  says  that  it  is  sufficient  to  charge  him  with  em- 
bezzling money.  It  seems  to  me  that  this  is  exactly  the  case  of 
R.  V.  Balls,  L.R.,  1  C.C.R.  328,  where  a  man,  having  to  account 
weekly  for  the  money  he  received,  accounted  for  £90  only  and 
kept  £10.  Not  being  able  to  discover  any  clear  principle  in  S. 
V.  Keena,  I  do  not  think  we  are  bound  to  apply  it  to  the  present 
case.  I  think  that  the  present  case  falls  exactly  within  the 
terms  of  the  76th  section  of  The  Larceny  Act.  The  third  point 
raised  was,  that  the  evidence  showed  that  if  any  sum  had  been 
received  there  were  more  than  three  such  sums  included  in  the 
general  deficiency.  That  does  not  seem  to  be  an  objection, 
especially  in  the  face  of  the  Act  of  1890,  which  provides  that,  "  on 
the  prosecution  of  any  person  for  the  larceny  or  embezzlement,  as 
a  clerk  or  servant,  of  money,  the  property  of  his  master,  it  shall 
not  be  necessary  to  prove  the  larceny  or  embezzlement  by  him 
of  any  specific  sum  of  money,  if  there  is  proof  of  a  general 
deficiency  on  the  examination  of  the  books  of  account  or  entries 
kept  or  made  by  him  or  otherwise,  and  the  jury  are  satisfied  that 
the  accused  stole  or  fraudulently  embezzled  the  deficient  money 
or  any  part  thereof."  On  the  grounds  which  I  have  stated,  I 
am  of  opinion  that  the  conviction  ought  to  be  affirmed. 

Harding  J.  Haeding  J.  :    The  prisoner's  duty  as  cashier  was  to  receive 


CRIMINAL  REPORTS,   1860—1907.  277 

all  moneys,  cheques,  drafts,  &c.,  paid  to  the  firm,  and  deposit  ^^^^^''^  "■  ^°''^^- 
the  same  in  the  bank  to  the  firm's  credit.  As  accountant,  his  Hardii;^  J 
duty  was  to  keep  the  books,  one  being  the  general  cash-book. 
Deighton  was  the  assistant  book-keeper  under  the  prisoner's 
direction.  He  received  moneys,  cheques,  drafts,  &c.,  and  he 
handed  to  the  prisoner  moneys  and  cheques  received  in  April. 
The  prisoner  made  entries  in  the  general  cash-book.  He  also 
made  all  the  entries  therein  of  the  deposits  made  in  the  bank  for 
April.  The  general  cash-book  for  April  showed  a  general  defici- 
ency of  £794  4s.  6d.— £8,444  18s.  lOd.  being  shown  as  received, 
and  £7,650  14s.  4d.  as  deposited.  It  is  further  stated  in  the 
case  that  the  larger  proportion  of  the  amounts  purporting  to  have 
been  received  according  to  the  general  cash-book,  not  only  in 
April  but  in  previous  months,  would  consist  of  money  orders, 
cheques,  and  drafts,  but  were  all  entered  as  cash  in  the  cash-book. 
Prom  this  I  deduce  that  some  of  the  money,  using  the  word 
in  its  largest  sense,  being  less  than  half  of  the  £8,444  18s.  lOd., 
consisted  of  actual  money  (coin),  but  it  is  not  necessary  to  require 
that  so  much  as  this,  or  so  much  as  £794  4s.  6d.,  the  amount 
alleged  to  have  been  embezzled,  should  have  been  paid  in  actual 
money  (coin),  the  mere  small  sum  handed  by  Deighton  to  the 
prisoner  being  sufficient  to  support  the  information  if  proved 
to  have  been  received  by  the  prisoner  and  embezzled  by  him. 
But  this  actual  proof  is  not  required  under  The  Larceny  Act 
Ar/iendment  Act  of  1890.  Here  we  have  a  general  deficiency, 
on  the  examination  of  the  books,  which,  with  the  evidence  as 
above,  and  the  answers  of  the  jury  to  the  judge's  second 
question,  showed  that  some  money  (coin)  had  been  received  by 
the  prisoner.  From  that  the  jury  were  justified  in  concluding 
that  money  (coin)  was  embezzled.  The  prisoner  might  have 
rebutted  this,  but  he  did  not  do  so.  The  conviction  must  be 
affirmed. 

Real   J.  :     To   convict   of   embezzlement,   it   is   necessary   to  Keal  ,J. 

prove  that  a  man  received  money,  using  the  word  in  the  widest 
sense,  as  comprehending  cheques  or  other  valuable  securities, 
and  that  it  had  been  misapplied  or  fraudulently  appropriated. 
Those  are  the  two  things  which  have  to  be  proved,  and  many 
circumstances  have  to  be  proved  in  connection  with  them.  That 
money  has  been  received  might  be  proved  in  many  different 
ways,  but  it  is  the  first  principle  of  our  law  that  a  man  is  innocent 
until  he  is  proved  guilty.  There  might  be  circumstances  of  sus- 
picion, all  capable  of  being  proved,  and  all  tending  to  point  to  the 


278  QUEENSLAND  JUSTICE   OF   THE   PE-ACE. 

Eegina  v.  Eotle.  possibility  or  probability  of  guilt ;    but  such  evidence  has  to  be 
EeaTj.  given  to  the  jury  so  as  to  enable  them  to  say,  not  that  it  was 

probable  that  the  prisoner  was  guilty,  but  that  he  is  guilty.  I 
feel  it  necessary  to  say  that,  because  it  has  been  urged  that  there 
was  no  evidence  that  the  prisoner  had  received  money  to  a  greater 
extent  than  he  had  paid  into  the  bank.  The  Act  of  1890  provides 
that  where  a  man  has  charged  himself  in  his  account  in  the  books 
kept  by  him,  or  the  entries  made  by  him  with  a  sum  of  money, 
and  has  not  accounted  for  the  whole  of  it,  the  jury,  if  the  man 
was  a  clerk  or  servant,  might  f3nd  him  guilty  of  embezzlement. 
That  section  was  no  doubt  made  to  simplify  the  method  of  proof, 
but  I  do  not  think  that  it  altered  the  law.  In  all  cases,  an 
admission,  or  a  confession,  is  said  to  be  the  highest  proof  that 
can  be  given  of  a  man's  guilt.  That  was  the  state  of  the  law 
before  the  passing  of  the  Act,  and  I  do  not  think  this  Act  has 
altered  it  in  the  slightest  degree.  I  think  the  term  "  kept  by 
him  "  was  used  in  the  sense  of  a  person  who  made  entries.  I  do  not 
think  it  altered  the  law  that  a  man  who  did  not  actually  make 
the  entries  could  not  bind  himself  by  admitting  the  correctness 
of  the  entries.  The  facts  of  the  case  show  clearly  that  the 
prisoner  knew  and  admitted  the  correctness  of  the  entries  on  the 
debit  side  as  concerning  himself.  That  being  so,  it  was  his  duty 
to  see  that  the  books  were  properly  kept.  To  my  mind,  there 
was  a  clear  admission  of  the  receipt  of  the  money,  and  the  admis- 
sion of  correctness  was  as  strong  as  if  the  prisoner  had  taken  the 
books  and  written  "  correct  "  across  the  entries.  The  important 
question  in  the  case  is,  that  there  cannot  be  a  conviction  of 
embezzlement  of  money  because  there  was  nothing  to  show  the 
receipt  and  non-paying  over  of  cash.  The  section  of  The  Larceny 
Act  says,  that  an  information  could  properly  charge  a  man  with 
embezzling  money,  when  all  he  had  done  was  to  take  a  valuable 
security.  The  case  of  R.  v.  Keena,  which  has  been  cited  as  an 
authority  to  the  contrary,  is,  in  my  opinion,  quite  inconsistent 
with  the  decision  which  has  been  come  to  by  the  Court.  The 
two  decisions  cannot  stand  together.  I  do  not  consider  it 
necessary  to  follow  that  case,  and  am  satisfied  that  the  conviction 
ought  to  be  confirmed. 

Conviction    affirmed. 

Solicitors  :    O'Shea  &  O'Shea. 


CRIMINAL  EEPORTS,   1860-1907. 


279 


[Full  Court.] 
REGINA  V.  McGEE. 

[6  Q.L.J.  151.— Note.— 55  Vie.,  No.  24,  ss.  3,  4,  and  10,  are  repealed,  see  now  s.  215 
of  Criminal  Code.  Criminal  Law  Amendment  Act  ol  1891,  s.  10,  is  repealed, 
see  now  ss.  578  and  583  of  Criminal  Code.  As  to  indecent  assault,  see  now 
s.  350  ot  Criminal  Co'de.    Case  referred  to  in  R.  v.  Cawley  (7  Q.L.J.  at  50,  post.] 

Criminal  Law  Amendment  Act  of  1891  (55  Vic,  No.  24);  ss.  3,  4, 
10 — Rape — Want  of  corroborative  evidence — Indecent  assault. 

A  prisoner  charged  with  rape  on  a  child  under  twelve  years  of  age  was  found 
guilty  of  an  attempt  to  have  unlawful  carnal  knowledge,  under  s.  4  of  The  Act  of 
1891,  and  of  indecent  assault.  There  was  no  corroborative  evidence  implicating 
the  accused. 

Held,  that  the  conviction  as  to  the  attempt  must  be  quashed,  but  the  conviction 
for  indecent  assault  affirmed. 

Cbown  Case  Reseeved  by  Harding  J. 

At  the  Ipswich.  Circuit  Court,  held  on  28th  July,  Ernest  McGee, 
who  had  been  charged  with  having  committed  rape  on  a  child 
under  twelve  years  of  age,  was  found  guilty  of  an  attempt  to 
have  unlawful  carnal  knowledge  of  such  girl,  and,  also,  of  an 
indecent  assault.  The  prisoner  was  defended  by  Mr.  P.  B. 
Macgregor,  who  raised  the  points  (1)  that  as  to  the  attempt 
there  was  no  corroborating  evidence  within  the  meaning  of  the 
last  paragraph  of  s.  4  of  Tlie  Criminal  Law  Amendment  Act  of  1891  ; 
(2)  and  that  the  jury,  having  found  the  prisoner  guilty  of  the 
attempt,  were  functi  officio,  and  the  information  exhausted. 
His  Honour  reserved  these  points.  He  sentenced  the  prisoner 
separately  on  each  conviction,  but  made  the  sentences  concurrent, 
and  respited  execution  of  the  judgment  until  the  questions  raised 
had  been  decided.  Meanwhile,  he  remanded  the  prisoner  to 
gaol.  In  his  statement  of  the  case.  His  Honour  stated  that  the 
only  evidence  implicating  the  prisoner  other  than  the  evidence  of 
the  girl  to  the  commission  of  the  offence  was  evidence  that  the 
prisoner  was  at  the  place  and  on  the  same  morning,  but  before 
the  time  when  the  offence  was  sworn  by  the  girl  to  have  been 
committed.  As  to  the  time  when  it  was  committed,  evidence 
was  given  in  support  of  an  alibi  on  the  part  of  the  prisoner. 
The  question  for  the  consideration  of  the  Court  was,  therefore, 
whether  the  prisoner  had  been  rightly  convicted  of  the  crimes 
charged  against  him,  or  either,  and  which  of  them. 

Power  for  the  Crown ;    Macgregor  for  the  prisoner. 


1894. 
August. 

Griffith  d.J. 
Harding  J. 
Real  J. 


280 


QUEENSLAND  JUSTICE   OP  THE   PEACE. 


Beoina  V, 
McGee. 

Griffith  C.J. 


Geiffith  C.J.  :  The  prisoner  was  charged  with  rape.  By 
the  10th  section  of  The  Criminal  Law  Amendment  Act  of  1891 
it  is  provided  that  if  on  the  trial  of  an  information  for  rape  or  any 
offence  made  felony  by  the  4th  section  of  the  Act  the  jury  are 
satisfied  that  the  accused  person  was  guilty  of  an  offence  under 
the  3rd,  4th,  or  6th  sections  of  the  Act,  or  of  an  indecent  assault, 
but  are  not  satisfied  that  the  accused  was  guilty  of  the  felony 
charged  in  the  information,  or  of  an  attempt  to  commit  that 
felony,  the  jury  may  acquit  the  accused  of  the  felony,  and  may 
find  him  guilty  of  such  other  offence,  or  of  an  indecent  assault. 
Upon  the  trial  of  this  man,  therefore,  he  might  have  been  con- 
victed under  the  3rd,  4th,  or  6th  sections  of  the  Act,  or  of  an 
indecent  assault,  or  of  an  attempt  to  commit  the  offence  of  rape. 
But  by  the  provisions  of  the  4th  section,  and  the  3rd  and  6th 
sections  for  that  matter,  it  is  enacted  that  no  person  shall  be 
convicted  of  an  offence  under  the  section  upon  the  evidence  of  one 
witness  only,  unless  such  evidence  is  corroborated  in  some  material 
particulars  by  evidence  implicating  the  accused.  Upon  the  trial 
objection  was  taken  that  there  was  no  evidence  corroborating 
that  of  the  prosecutrix  within  the  meaning  of  the  Act.  The 
only  evidence  of  a  corroborative  nature  was,  putting  it  at  the 
highest,  that  the  accused  and  she  were  alone  together  in  the  house 
where  they  both  lived.  They  had  not  gone  there  for  any  par- 
ticular purpose.  They  both  hved  there  ordinarily,  and  had 
been  Hving  there  for  some  time.  For  my  own  part,  I  do  not  think 
that  that  is  corroborative  evidence  of  an  attempt  to  commit 
this  kind  of  offence  upon  her.  I  think,  therefore,  that  there  was 
no  corroborative  evidence,  and  under  these  circumstances  the 
prisoner  could  not  be  convicted  under  the  3rd,  4th,  or  6th  sections 
of  the  Act.  But  the  rule  requiring  corroborative  evidence  does 
not  apply  to  the  charge  of  indecent  assault.  The  learned  Judge 
told  the  jury  that  he  could  see  no  corroborative  evidence,  and 
advised  them  to  acquit  the  prisoner  of  the  attempt,  and  left  it  to 
them  whether  he  ought  to  be  found  guilty  of  indecent  assault. 
The  jury,  probably,  thinking  themselves  wiser  than  the  learned 
Judge,  and  beheving  the  girl's  evidence,  found  that  he  was 
guilty  of  an  attempt  to  commit  an  offence  on  a  child  under  the 
age  of  twelve  years,  and  they  also  found  him  guilty  of  indecent 
assault.  The  second  objection  was,  that  these  two  findings 
could  not  stand  together,  and  that  under  s.  10  the  jury  must  find 
the  prisoner  guilty  of  one  of  the  offences  enumerated  in  the 
statute,  or  of  an  indencent  assault,  but  could  not  find  him  guilty 
of  two  offences,  and  that  the  verdict  finding  him  guilty  of  two 


CRIMINAL  REPORTS,  1860-1907. 


281 


offences  was,  therefore,  bad  altogether.     That  was  supported  by 
a  very  ingenious  argument  founded  upon  the  words  of  this  section, 
which  might  be  said  to  point  to  the  conclusion  that  the  jury  must 
make  up  their  minds  of  what  offence  the  accused  was  guilty,  and 
say  that  he  was  guilty  of  one  or  another,  but  could  not  find  him 
guilty  of  both.     I  think  that  in  construing  this  section  we  ought 
to  have  regard  to  the  general  law  and  rules  of  the  Court  relating 
to  criminal  pleadings  before  the  Act  was  passed.     One  of  the 
rules  at  common  law  was,  that  a  plaintiff  could  make  his  case  in 
as  many  counts  as  he  pleased,  and  if  he  succeeded  in  establishing 
one  of  them  to  the  satisfaction  of  the  jury,  he  was  entitled  to 
judgment  on  that.     If  damages  were  awarded  jointly  on  a  good 
and  bad  count  the  verdict  would  not  stand.      In  criminal  pro- 
ceedings it  was  competent  for  the  Crown  to  join  as  many  charges 
as  they  thought  fit  in  the  same  indictment — being  all  either  felony 
or  misdemeanour — and  they  were  treated  theoretically  as  charges 
of  different  offences.     But  that  was  mitigated  by  the  rule  that  if 
a  man  was  really  charged  with  more  than  one  act  as  a  crime,  the 
prosecutor  could  be  called  upon  to  elect  which  act  he  would  pro- 
ceed upon.     Theoretically,  as  many  charges  might  be  included  as 
the  prosecutor  thought  fit  ;    and,  theoretically,  if  the  jury  gave 
a  general  verdict,  it  would  be  good.     And  it  was  not  uncommon 
to  combine  charges  of  different  offences  in  the  same  information 
either    for    misdemeanour    or    felony.     That    being    the    general 
practice  under  the  old  rules,  the  Court  by  degrees,  for  the  purpose 
of  saving  trouble  and  simplifying  matters,  introduced  a  rule  that, 
upon  the  charge  of  an  offence  which  necessarily  involved  a  minor 
offence,  the  jury  might  find  the  accused  guilty  of  the  minor 
offence.     That  was  in  the  first  year  of  Queen  Victoria,  I  think. 
That  practice  was  further  extended  until  brought  to  its  highest 
development  in  this  Act  now  before  the  Court.     The  question 
now  is.  What  construction  should  be  placed  upon  that  new  rule 
of  procedure  ?     Was  an  information,   although  containing  only 
one  count,  to  be  treated  as  containing  separate  counts  for  each 
separate  offence  of  which  the  accused  might  be  found  guilty 
under  the  one  charge  ?     For  some  purposes  I  think  that  is  so. 
Mr.  Justice  Harding  in  this  case  took  the  verdict  of  the  jury  on 
each    charge    involved    in    the    indictment.     Other    judges    are 
content  to  take  the  verdict  of  guilty  on  one  charge  and  to  treat 
the  verdict  as  one  of  not  guilty  on  all  the  rest.     The  question, 
then,  arises  whether  it  was  competent  under  these  circumstances 
to  find  the  prisoner  guilty  of  more  than  one  offence.     It  seems  to 
me  that  the  principle  intended  to  be  introduced   by  the  Acts 


Begina  u. 
McGee. 

Griffith  C.J. 


282 


QUEENSLAND  JUSTICE   OF  THE  PEACE. 


Eegina  v. 

McGee. 

Griffith  C.J. 


Harding  J. 
Eeal  J. 


beginning  with  the  last  year  of  William  IV.,  down  to  the  year 
1891,  was  to  introduce  into  the  criminal  procedure  an  analogous 
system  to  that  provided  for  by  the  rules  of  common  law  procedure 
— «o  that  the  jury  might,  on  a  charge  of  this  sort,  if  they  found 
all  the  necessary  ingredients  of  a  criminal  offence,  give- their 
verdict  upon  it,  and  in  addition  find  other  ingredients  which  would, 
together  with  the  first,  constitute  a  criminal  offence  of  a  higher 
degree.  If  that  is  the  correct  view,  the  two  findings  could  not 
vitiate  one  another.  A  good  finding  supported  by  the  evidence 
would  not  be  vitiated  by  a  finding  unsupported  by  the  evidence. 
I  cannot  find  any  authority,  nor  has  any  been  brought  under  my 
notice,  showing  that  a  verdict,  supported  by  evidence  that  a  man 
was  guilty  of  an  offence,  would  be  vitiated  by  a  finding  that  he 
was  also  guilty  of  some  other  offence,  which  was  not  warranted 
by  the  evidence  ;  nor  do  I  know  any  reason  why  the  verdict  on 
one  count  should  be  taken  in  priority  of  the  other.  One  of  them 
was  warranted  by  the  evidence  ;  the  other  was  not.  Under  these 
circumstances,  I  do  not  think  the  finding  warranted  by  the  evi- 
dence was  vitiated  by  the  finding  not  warranted  by  the  evidence. 
For  these  reasons,  I  am  of  opinion  that  the  conviction  for  the 
attempt  should  be  quashed,  and  that  for  the  indecent  assault 
affirmed.  I  should  Uke  to  offer  one  other  observation  in  passing — 
Under  the  old  rule,  where  there  were  several  counts  in  the  in- 
formation, they  were  treated  as  separate  charges,  and  the  sentence 
upon  them  might  be  cumulative.  They  were,  in  point  of  fact, 
different  counts  ;  and  there  was  nothing  on  the  face  of  the  infor- 
mation to  inform  the  Court  that  the  charges  were  all  in  respect  of 
the  same  act.  But  where  the  same  practical  result,  so  far  as 
regards  the  capacity  of  the  jury  to  convict,  arises  under  the 
statutory  power,  to  which  I  have  referred,  the  circumstances  are 
different,  because  there  the  Court  knows,  on  looking  at  the 
information  itself,  that  it  is  only  one  act  that  is  charged.  It  is 
not  several  charges,  but  only  one  ;  and  although  a  man  might 
be  convicted  on  such  an  information  of  various  crimes  technically 
different,  yet  the  Court  knows  that  only  one  offence  was  charged, 
so  that  in  that  case,  I  think  there  could  be  only  one  sentence  ; 
and  if  one  offence  was  graver  than  the  other,  I  think  the  minor 
offence  would  merge  in  the  greater  one. 

Harding  and  Real  JJ.  concurred. 

The  conviction  for  the  attempted  criminal  assault  was  quashed, 
and  that  for  the  indecent  assault  affirmed. 
Solicitor  for  prisoner  :    P.  A.  0' Sullivan. 


CRIMINAL  REPOETS,   1860-1907. 


283 


[Full  Couet.] 
BLACK  V.  TURNER. 

[6  Q.L.J.  153.— Note.— 29  Vic,  No.  5,  s.  26,  is  repealed,  see  now  ss.  22,  469,  and 
476  of  Ciimlnal  Code.  Case  followed  in  Keable  v.  Clancey,  3  Q.J.P.R.  206, 
1909  S.R.Q.  345).] 

Injuries  to  Property  Act  of  1865  (29  Vic,  No.  5),  s.  26 — Bona  fide 
claim  of  right — Wrongful  admission  of  evidence. 

A  bona  fide  claim  to  use  land  as  a  highway  ousts  the  jurisdiction  of  justices  on 
an  information  for  malicious  injury  to  a  fence  erected  across  such  land. 

Quaere,  whether  a  map  of  the  locus  in  quo,  purporting  to  be  drawn  by  a  surveyor 
who  is  not  called  as  a  witness,  can  be  admitted  in  evidence  if  objected  to. 

Oedee  nisi  to  set  aside  a  conviction  of  Justices  at  Mount 
Morgan,  against  W.  Turner,  under  s.  26  of  The  Injuries  to  Property 
Act  of  1865,  for  unlawfully  and  maliciously  destroying  a  fence, 
whereby  the  defendant  was  ordered  to  pay  a  fine  of  one  guinea, 
thirteen  shillings  damages,  and  two  pounds  for  costs. 

The  grounds  for  the  rule  were  :  (1)  That  the  evidence  disclosed 
no  offence  ;  (2)  that  there  was  no  evidence  that  the  defendant 
acted  unlawfully  and  maliciously  ;  (3)  that  the  defendant  acted 
under  an  assertion  of  a  bona  fide  claim  of  right ;  and  (4)  that 
evidence  was  wrongfully  admitted. 

It  appeared  that  a  fence  had  been  erected  by  the  trustees  of 
the  Mount  Morgan  Racecourse  across  a  track,  which  it  was  alleged 
had  been  in  use  for  some  years  as  a  highway.  The  defendant, 
who  had  been  in  the  habit  of  driving  along  this  track,  found  it 
one  day  closed  by  a  fence,  he  pulled  down  about  35  feet  and 
made  a  way  for  himself.  He  was  prosecuted  for  .maliciously 
destroying  the  property  of  the  Mount  Morgan  Racing  Club,  and 
set  up  as  a  defence  that  the  track  was  a  public  road,  and  that  he 
had  a  right  to  remove  the  obstruction. 

It  was  also  contended  that  the  bench  wrongfully  admitted  what 
purported  to  be  a  plan  of  the  locality. 

Lilley  for  appellant ;  Feez  for  respondent. 

Gkiffith  C.J.  :  The  appellant  was  charged  with  having  un- 
lawfully and  maliciously  destroyed  a  fence,  the  property  of  the 
trustees  of  the  racecourse  at  Mount  Morgan.  The  defence 
that  he  set  up  was  in  substance  that  there  had  been  for  many 
years  a  road  leading  through  the  racecourse  reserve,  and  that 
that  road  had  by  long  usage  become  dedicated  as  a  public  highway. 
In  the  present  case  there  was  no  doubt  that  this  road  had  been 


1894. 
August, 

Griffith  a  J. 
Harding  J. 
Real  J. 


Griffith  C.J. 


284 


QUEENSLAND   JUSTICE   OF   THE    PEACE. 


Black  v.  TnRNER.  used  for  many  years.  It  was  not  a  road  surveyed,  or  of  any 
Griffith  C  J,  definite  width,  but  it  was  a  track  that  led  through  the  land. 
Whether  it  had  been  dedicated  as  a  highway,  or  whether  a  road 
could  be  dedicated  by  mere  user  under- such  circumstances,  were 
interesting  questions  ;  but,  at  any  rate,  there  was  no  doubt  that 
under  these  circumstances  a  man  might  honestly  believe  that 
such  a  right  did  exist.  In  my  opinion,  a  bona  fide  claim  of  right 
to  use  a  highway  is  a  sufficient  claim  of  right  to  oust  the  jurisdiction 
of  the  Justices.  If  it  were  a  frivolous  claim,  the  Justices  would 
probably  not  be  bound  to  stay  their  hands.  But  I  do  not  think 
that  the  Justices  had  any  evidence  before  them  to  suggest  that 
the  claim  of  right  set  up  was  not  bona  fide.  I  therefore  think 
that  the  conviction  ought  not  to  have  been  made,  and  that  the 
rule  must  be  made  absolute.  On  the  question  of  the  admissibihty 
of  evidence,  not  having  heard  argument  on  both  sides,  I  express 
no  opinion. 


Harding  J.  Harding  J.  :    I  agree  with  the  learned  Chief  Justice  in  his 

opinion  that  reasonable  evidence  of  a  bona  fide  claim  of  right-of- 
way  was  raised  in  the  case,  and  upon  it  being  given,  the  Magis- 
trates' jurisdiction  was  ousted.  I  think  that  the  rule  must  be 
made  absolute,  also,  on  the  ground  that  evidence  was  wrongly 
admitted.  The  evidence  said  to  have  been  wrongly 
admitted  was  a  map  of  the  locits  in  quo.  That  was  map  D, 
which  purported  to  have  been  dra-mti  by  Frederick  Byerley, 
licensed  surveyor,  Rockhampton  ;  but  Byerley  was  not  called, 
and  so  far  as  that  was  concerned  it  was  secondary  evidence  of  his 
having  made  it.  If  he  had  been  called,  and  the  plan  had  been 
tendered,  the  proper  course  for  the  counsel  for  the  defendant 
to  have  followed  would  have  been  to  ask  how  it  was  made  up. 
The  surveyor  would  at  once  have  been  bound  to  say  that  it  was  a 
copy  of  another  map,  which  itself  had  been  compiled  from  notes 
on  the  field,  so  that  either  map  would  not  be  primary  evidence, 
and  in  no  case  could  this  map  be  evidence  at  all.  It  was  not 
receivable  evidence  ;  and  after  reading  the  evidence  and  listening 
to  the  argument,  I  am  of  opinion  that  if  I  had  been  deciding  the 
case,  the  map  would  have  materially  affected  my  judgment. 
Seeing  that  the  Magistrates  had  visited  the  loctis  in  quo  and  took 
the  plan  with  them,  I  can  only  infer  that  it  affected  their  decision. 
It  has  been  decided  by  the  Court  that  in  a  criminal  prosecution 
it  is  the  duty  of  the  Judge  to  keep  out  illegal  evidence,  and  that 
if  the  case  goes  to  the  jury  with  illegal  evidence  a  conviction  will 


CRIMINAL   REPORTS,   1860-1907. 


285 


not  stand.     This  evidence  was  wrongly  admitted,  and  on  that  ^^"^  "•  Tueneb. 
ground  also  the  rule  ought  to  be  made  absolute  and  with  costs.  Harding  J. 

Real  J.  :  I  concur  with  the  judgment  of  the  learned  Chief 
Justice.  I  express  no  opinion  on  the  wrongful  admission  of 
evidence. 

Conviction  quashed  with  costs. 

Solicitors  for  appellant  :    Bees  R.  di  S.  Jones. 

Solicitors  for  respondents  :    Chambers,  Bruce  <fc  McNah. 


[BtTNDABERG    CbIMINAL   SITTINGS.] 

REGINA  V.  ROBINSON. 

[6  Q.L.J.  184.] 

Prisoner  committed  for  trial  hut  unable  to  he  brought  to  Circuit 
Town  through  illness — Form  of  Bench  Warrant. 

An  information  was  presented  against  the  accused  for  forgery 
and  uttering.  The  accused  did  not  appear,  and  the  Crown 
Prosecutor,  after  reading  an  affidavit  of  the  Government  Medical 
Officer  that  the  accused  was  in  Brisbane  Gaol  and  was  unable 
through  iUness  to  appear,  appUed  for  the  issue  of  a  Bench  Warrant. 
The  Chief  Justice  directed  the  application  to  stand  over  till  the 
close  of  the  Sittings,  and  on  its  renewal  at  that  time  a  Bench 
Warrant  was  granted  in  the  following  form  : — 

Queensland. 

IN    THE    CIBCtriT    COURT    AT   BUNDABERG. 

To  all  Police  Officers  within  the  Colony  of  Queensland,  and 
to  the  Keeper  of  the  Gaol  at  Bundaberg  in  the  said  Colony  : 

These  are  to  require  and  in  Her  Majesty's  name  to  charge  and 
command  you  the  said  Police  Officers  upon  sight  hereof  to  bring 
before  me  at  the  Circuit  Court  now  holden  at  Bundaberg  in  the 
said  Colony  Thomas  Robinson  against  whom  an  information 
has  been  presented  before  me  in  the  said  Circuit  Court  for  forgery 
and  uttering  a  forgery  if  the  Court  be  then  and  there  sitting, 
and  if  not  to  convey  the  said  Thomas  Robinson  to  the  Gaol  at 
Bundaberg  aforesaid  and  deliver  him  to  the  keeper  thereof 
together  with  this  Warrant.     And  these  are  further  to  command 


1894 
5th  October. 

Griffith  G.J. 


286 


Eegina  v. 
kobikson. 


QUEENSLAND  JUSTICE   OF  THE  PEACE. 

you  the  Keeper  of  the  said  Gaol  to  receive  the  said  Thomas 
Robinson  into  your  custody  into  the  said  Gaol  and  him  there  keep 
until  the  next  Sittings  of  the  said  Circuit  Court  at  Bundaberg 
aforesaid  or  until  he  shall  thence  be  delivered  by  due  course  of 
law. 

(Indorsement.) 

I  authorize  that  the  within-named  Thomas  Robinson  be  bailed 
by  recognizance  himself  in  the  sum  of  £80  and  two  sureties  in  the 
sum  of  £40  each. 


1895. 

Febrvary. 

Griffith  G.J. 
Harding  J. 
Real  J. 


[Full  Court.] 
REGINA  V.  CONNELL. 

[6  Q.L.J.  209.— Note.— As  to  embezzlement,  see  now  s.  398  (VI.)  of  Criminal  Code. 
57  Vic,  No.  1,  is  repealed  by  4  Ed.  Vn.,  No.  6.  Case  referred  to  in  B.  v. 
Whitehouse,  6  Q.L.J.  313,  post.)] 

Criminal  law — Embezzlement — Incorporation  of  company — 57  Vic, 

No.  I. 

The  Court  will  take  judicial  notice  of  the  existence  of  an  incorporated  company 
mentioned  as  such  in  a  statute. 

On  a  charge  of  embezzlement  from  such  a  company  it  is  unnecessary  to  prove 
its  incorporation. 

Ckown.  Case  Reserved  by  Noel  D.C.J. 

The  prisoner  was  charged  at  Croydon  with  embezzling  the 
funds  of  the  Queensland  National  Bank  Limited.  No  evidence 
was  given  of  the  incorporation  of  the  bank.  The  learned  Judge 
refused  to  direct  on  that  account  that  there  was  no  proof  that  the 
prisoner  was  employed  by  the  Queensland  National  Bank 
Limited,  and  that  there  was  no  proof  of  the  existence  of  such  an 
institution. 

The  prisoner  was  convicted,  but  the  points  were  reserved  for 
the  FuU  Court.  '™' 

Power,  for  the  Crown,  cited  Regina  v.  Langton  (2  Q.B.D.  296). 

Ball  for  prisoner. 

As  there  was  some  doubt  whether  the  word  limited  was  con- 
tained in  the  information  describing  the  bank,  the  case  was 
referred  for  amendment. 


OEIMINAL  REPORTS,  1860-1907. 


287 


Gbiffith  C.J.  :  By  the  case  as  now  amended  it  appears  that 
the  prisoner  was  indicted  for  embezzlement  as  a  servant  of  the 
Queensland  National  Bank  Limited.  The  evidence  showed 
that  he  was  in  the  employ  of  the  Queensland  National  Bank 
Limited,  as  teller.  The  point  taken  by  the  prisoner's  advocate 
was  that  there  was  no  evidence  that  the  Queensland  National 
Bank  Limited,  was  a  duly  incorporated  joint  stock  company. 
What  conclusion  might  be  come  to  apart  from  the  statute  57 
Vic,  No.  1,  it  is  not  necessary  to  say.  That  statute  recognised 
the  institution  called  the  Queensland  National  Bank  Limited, 
as  a  duly  incorporated  joint  stock  company  carrying  on  business 
in  Queensland.  That  is  an  Act  of  which  the  Court  is  bound  to 
take  notice.  It  appears  to  me  that  the  statute  completely 
answers   the   objection,    and  the   conviction   must   be   afifirmed. 

Harding  J.  :  To  support  a  charge  of  embezzlement  it  is 
necessary  to  prove  the  ownership  of  the  property  embezzled. 
Now  the  owner  of  property  is  either  an  actual  or  an  artificial 
person  having  power  to  deal  with  it — actual  such  as  a  human 
being,  artificial  such  as  an  entity  constituted  and  enabled  by  law 
to  deal  with  it.  In  no  other  way  can  property  form  the  subject 
of  ownership.  A  dumb  animal  cannot,  nor  can  an  inanimate 
thing  own  property.  A  number  of  persons  cannot  nor  can  a  single 
person  not  incorporated  or  so  enabled  by  Act  of  ParUament  own 
property  by  a  name.  It  belongs  to  them  or  him  jointly  and 
severally  as  the  case  may  be.  If  a  man  transfers  his  property 
to  an  inanimate  thing,  it  does  not  pass  to  that  thing.  In  the 
present  case  it  was  not  at  first  stated  that  the  Queensland  National 
Bank  was  a  company  incorporated  or  otherwise  able  or  entitled 
to  hold  property  by  the  name  of  the  Queensland  National  Bank. 
As  the  case  was  left  it  might  have  been  simply  a  trade  name 
or  an  individual  or  a  number  of  persons  unincorporated.  Conse- 
quently, the  ownership  of  the  property  would  not  have  been 
found,  and  the  prisoner  would  have  been  wrongfully  convicted, 
there  being  no  evidence  that  such  an  institution  existed  in  law. 
As  the  case  has  come  back  it  appears  from  the  information  that 
the  prisoner  was  charged  as  the  employe  of  the  Queensland 
National  Bank  Limited,  and  that  it  was  the  property  of  that 
bank  and  not  of  a  company  called  the  Queensland  National 
Bank  he  was  .charged  with  embezzHng.  The  Judge's  notes 
of  the  case  show  that  there  was  evidence  of  those  facts,  and  of 
the  baiik  as  carrying  on  business.  The  production  of  the  certifi- 
cate of  incorporation  is  not  necessary  when  it  is  found  that  the 


Rbgisa  v. 

CONNELL. 

Griffith  C.J. 


Harding  J. 


?88 


Begina  v. 

CONNELL. 

,  Harding  J. 


Eeal  J. 


QUEE^fSLAND  JUSTICE   OP  THE    PEACE. 

company  has  carried  on  business  as  such.  The  Court  takes 
judicial  knowledge  of  the  existence  of  the  Queensland  National 
Bank  Limited,  as  an  incorporated  company,  the  company  being 
recognised  by  statute  as  such.  The  company  being  in  existence 
and  the  prisoner  engaged  as  an  employe  of  that  company,  there 
was  consequently  evidence  to  go  to  the  jury  that  the  company 
in  respect  of  whose  money  he  was  charged  with  having  embezzled 
was  the  same  company  as  that  mentioned  in  the  Act  of  Parlia- 
ment 57  Vic,  No.  1. 

Real  J.   concurred. 

Conviction  affirmed. 

Solicitor  for  prisoner  :    F.  J.  Lyons. 


[Bbisbane  Criminal  Sittings.] 
REGINA  V.  VOS  AND  OTHERS. 

[6  Q.L.J.  215.— Note.— See  Form  No.  360,  Part  I.,  s.  III.,  ol  Schedule  to  Criminal 
Code,  Wilson  &  Graham's  Code,  p.  480.] 

1895.  Criminal    law — Jurisdiction — Judicial    notice — Pacific    Islanders 

15th  March.  Protection  Act  1872  (35  and  36  Vic,  c.  19),  s.  9—38  and  39 

Harding  J.  Vic,   C.   51,   S.    6. 

On  an  information  against  certain  prisoners  for  an  alleged  breach  of  s.  9  of  35 
and  36  Vie.,  o.  19,  a  question  arose  whether  the  island  of  Malayta  was  part  of  Her 
iKlajesty's  dominions  or  within  the  jurisdiction  of  any  civilised  Power.  The 
presiding  judge  directed  a  letter  to  the  Governor  of  Queensland,  and  received  a 
reply  that  it  was  not,  but  that  it  was  under  the  protectorate  of  Her  Majesty  the 
Queen.  From  an  Order-in-Counoil,  under  s.  6  of  38  and  39  Vic,  u.  51,  setting  out 
the  limits  of  dominion,  it  appeared  that  Malayta  was  not  part  of  Her  Majesty's 
dominions,  nor  within  the  jurisdiction  of  any  civilised  Power. 

Harding  J.  held  he  had  sufficient  information  to  take  judicial  notice  of  the 
position  of  the  island,  and  decided  that  the  court  had  jurisdiction  to  try  the 
information. 

Information  against  Joseph  Vos,  George  Thomas  Olver, 
Michael  Joseph  Curry,  Alfred  Cuthbert  Hall,  Arthur  Absalom, 
and  Alfred  Dowsett,  under  35  and  36  Vic,  c.  19,  s.  9. 

Byrnes  A.G.,  Power,  and  Lukin,  for  the  Crown. 

Feez  for  the  prisoners. 


CRIMINAL  REPOETS,  1860-1907.  289 

Byrnes   A.G.,    before    opening   the    case   for   the    prosecution,      R^oina  f-  Vos 

stated  that  the  question  of  the  extent  of  Her  Majesty's  dominions  

would  probably  arise,  and  submitted  a  reference  should  be  made 
to  His  Excellency  the  Governor,  as  Her  Majesty's  representative 
in  the  colony,  to  inform  the  Court  whether  the  island  of  Malayta 
was  within  Her  Majesty's  dominions  or  within  the  jurisdiction  of 
any  civilised  Power.  Reference  was  made  to  Mighell  v.  Sultan 
of  Johore  (1894,  1  Q.B.  149)  ;  Be  Carlo  Pedro  (5  Q.L.J.  22), 
Taylor  v.  Barclay  (2  Sim,  221),  Foreign  Jurisdiction  Act,  1890 
(53  and  54  Vic,  c.  37),  s.  4. 

The   jury  were  then  impanelled. 

At  a  later  stage  in  the  case  Harding  J.  directed  a  question  for  the 
Governor,  "  Is  the  island  of  Malayta,  which  is  an  island  in  the 
Pacific  Ocean,  within  Her  Majesty's  dominions,  or  within  the 
jurisdiction  of  any  civiUsed  power  ?  "  A  reply  was  received  in 
the  negative.  A  copy  of  the  Queensland  Government  Gazette, 
dated  the  21st  May,  1892,  containing  the  regulations  under  The 
Pacific  Island  Labourers  Acts  ;  a  copy  dated  31st  August,  1872  ; 
and  a  copy  dated  16th  November,  1875,  containing  a  procla- 
mation of  35  and  36  Vic,  c  19,  were  put  in  evidence. 

Feez  submitted  there  was  no  case  to  go  to  the  jury,  and  asked 
for  a  direction  to  the  jury  to  return  a  verdict  of  not  guilty  against 
all  the  prisoners,  on  the  ground  that  there  is  no  evidence  that  the 
island  of  Malayta  is  not  within  Her  Majesty's  dominions,  nor 
within  the  jurisdiction  of  any  civilised  Power  ;  and  also  on  the 
ground  that  there  was  no  evidence  that  the  islanders  or  any  of 
them  were  carried  away  without  their  consent.  He  cited  Taylor 
on  Evidence,  s.  17. 

Habding  J.  :  The  question  has  arisen  whether  the  island  of  Harding  J. 
Malayta  is  not  in  Her  Majesty's  dominions,  and  not  within  the 
jurisdiction  of  any  civilised  Power.  Whether  that  is  for  me  as  a 
Judge  declaring  the  law,  or  whether  it  is  a  question  of  fact  to 
be  ascertained  by  the  jury,  has  been  raised  by  Mr.  Feez.  He 
has  contended  that  it  is  not  a  matter  of  judicial  knowledge,  or 
amongst  the  things  which  are  judicially  taken  notice  of.  The 
American  writer,  Greenleaf  on  Evidence,  Vol.  III.,  282,  whose 
book  was  taken  as  the  basis  of  the  EngUsh  book  by  Taylor, 
one  of  the  leading  books  on  evidence  has  thus  stated  the  matter. 
"  The  principle  on  which  judicial  notice  is  taken  is  the  universal 
notoriety  of  the  facts  in  question.  These  are  sometimes  distri- 
buted into  two  classes,  composed  of  those  things  of  which  the 


290  QUEENSLAND  JUSTICE  OF  THE  PEACE. 

Eegina  v.  Vos     Court  of  its  own  motion  takes  notice,  and  those  of  which  it  does 

AND    OtBBSR 

not  take  notice,  unless  its  attention  is  directed  to  them  by  the 

Harding  J.  parties."  If  the  Court  is  embarrassed,  it  may  take  or  refuse  to 
take  judicial  notice  of  a  fact  which  forms  one  of  the  subjects  of 
judicial  cognisance,  and  unless  the  party  calling  upon  the  Court 
to  take  such  judicial  notice  produces  the  books  and  documents 
which  satisfy  him  as  to  its  existence.  But  the  Judge  may  inform 
himself  of  such  facts  in  any  way  which  he  may  deem  best  in  his 
discretion,  so  that  in  this  case  I  might  have  stopped  the  case 
until  the  Attorney-General  had  proved  to  my  satisfaction  the 
fact  of  which  I  am  required  to  take  judicial  notice — namely, 
that  these  islands  are  not  in  Her  Majesty's  possession  or  within 
the  jurisdiction  of  any  civilised  Power.  I  might  have  stopped 
the  case  until  he  had  produced  evidence  of  that,  or  I  might  have 
known  it,  and  if  I  did  not  know  it  I  might  have  informed  myself 
in  any  way  which  I  deem  best  in  my  discretion.  I  am  not  obUged 
to  take  judicial  notice  of  any  of  those  matters  of  fact,  but  I  am 
at  liberty  to  do  so  at  my  discretion.  The  text  writers  say  that 
the  exercise  of  that  discretion  depends  upon  the  nature  of  the 
subject  usually  involved,  and  the  apparent  justice  of  the  case. 
I  have  taken  two  courses  in  this  case,  each  for  the  purpose  of 
satisfying  myself,  and  they  have  both  brought  me  to  the  same 
conclusion.  I  have  a  letter  under  the  hand  of  His  Excellency 
the  Governor,  Sir  Henry  WyUe  Norman,  signing  himself,  not 
only  as  Sir  Henry  WyUe  Norman,  but  as  Governor  of  Queensland, 
dated  from  Government  House  as  late  as  the  12th  March  in  this 
present  year.  His  Excellency  has  informed  me  that  he  is  able, 
from  his  official  knowledge,  to  inform  me  that  the  island  of  Malayta 
is  not  part  of  the  Queen's  dominions,  and  not  within  the  juris- 
diction of  any  civilised  Power,  but  that  it  is  under  the  protectorate 
of  Her  Majesty  the  Queen.  That,  I  think,  alone  would  be  suffici- 
ent for  me  to  base  my  opinion  on  ;  but  I  further  support  my 
knowledge  by  reference  to  the  Pacific  Islanders  Protection  Act  of 
1875,  being  38  and  39  Vic,  c.  51,  s.  6,  which  says,  "  It  shall  be 
lawful  for  Her  Majesty  to  exercise  power  and  jurisdiction  over 
her  subjects  within  any  islands  and  places  in  the  Pacific  Ocean, 
not  being  within  Her  Majesty's  dominions,  nor  within  the  juris- 
diction of  any  civiUsed  Power,  in  the  same  and  in  as  ample  a 
manner  as  if  such  power  or  jurisdiction  had  been  acquired  by  the 
cession  or  conquest  of  territory,  and  by  Order  in  Council  to  create 
and  constitute  the  office  of  High  Commissioner  in,  over,  and  for 
such  islands  and  places."     In  the  case  of  The  King  v.  Daniel 


CRIMINAL  REPORTS,  1860-1907. 


291 


Holt  in  5  Term  Reports,  p.  436,  at  p.  442,  it  is  stated  that  "  the 
Gazette  is  of  itself  prima  facie  evidence  of  matters  of  State  and 
of  the  pubhc  Acts  of  the  Government.  It  is  pubhshed  by  the 
authority  of  the  Crown  ;  it  is  the  usual  way  of  notifying  such 
Acts  to  the  public  ;  and  therefore  is  entitled  to  credit  in  respect 
of  such  matters.  Lord  Holt  held  it  a  high  misdemeanour  to 
pubhsh  anything  as  from  royal  authority  which  was  not  so. 
In  a  late  case  at  Lancaster,  upon  an  occasion  similar  to  the  present. 
Justice  BuUer  held  that  the  Gazette  is  evidence  of  the  King's 
proclamation  contained  therein.  So  it  has  been  held  by  all  the 
Judges  that  the  articles  of  war  printed  by  the  King's  printer 
are  good  evidence  of  such  articles."  Now,  it  being  a  high  mis- 
demeanour to  publish  as  from  the  royal  authority  that  which 
has  not  the  royal  authority  for  its  publication,  and  anything  of 
royal  authority  published  by  persons  that  have  that  authority 
and  profess  to  publish  by  royal  authority  is  receivable  as  evidence, 
I  consequently  turn  to  a  publication  of  the  English  Government 
which  on  the  bottom  of  it  has  "  published  by  authority."  This 
is  a  compilation  of  statutory  rules  and  orders  issued  in  the  year 
1893,  and  at  page  312  I  find  the  Pacific  Order-in-Council  of  1893. 
Now  that  order  specifically  recites  the  section  of  the  Act  which  I 
have  read,  and  that  it  is  made  in  pursuance  of  that  Act  and  other 
Acts.  Consequently  anything  contained  in  that  order  and 
anything  recited  in  the  Acts  of  Parliament  are  to  be  taken  by  the 
Courts  to  be  facts.  Now  the  Act  which  I  have  referred  to  (38  and 
39  Vic,  c.  51)  has  to  be  read  and  incorporated  with  35  and  36 
Vic,  c  19,  which  recites  in  the  preamble  that  "Whereas  criminal 
outrages  by  British  subjects  upon  natives  of  islands  in  the  Pacific 
Ocean,  not  being  in  Her  Majesty's  dominions  nor  within  the 
jurisdiction  of  any  civilised  Power,  have  of  late  much  prevailed 
and  increased,  and  it  is  expedient  to  make  further  provision  for 
the  prevention  and  punishment  of  such  outrages."  Therefore 
the  Act  of  Parhament  and  the  Order-in-Council  were  both  made 
with  the  object  of  providing'  for  places  "  not  being  in  Her 
Majesty's  dominions  nor  within  the  jurisdiction  of  any  civilised 
Power."  From  that  I  take  it  that  anything  I  find  stated  as  a 
fact  in  this  Order-in-Council  is  the  law  of  the  land,  and  is  a  fact 
recognised  by  our  law.  Now  the  Order-in-Council  states  that 
its  hmits  shall  be  the  Pacific  Ocean  and  the  islands  and  places 
therein,  including  certain  mentioned,  but  exclusive,  except  as 
this  order  expressly  provides  by  subsection  2,  of  any  place  for 
the  time  being  within  the  jurisdiction  or  protectorate  of  any 


Regina  v.  Vcs 

AND    OtUEBS. 

,  Harding  J. 


292  QUEENSLAND  JUSTICE   OF  THE   PEACE. 

Kegina  v.  Vos     civilised  Power.     Consequently  this  order  cannot  apply  to  any 

AND    OTHEEa.  ,  ,  ^  ,  ...  .,.,..,..  "^ 

place  that  is  for  the  time  being  withm  the  jurisdiction  or  pro- 

Hardmg  J.       tectorate  of  any  civilised  Power.     Going  on,  I  find  that  although 
the  order  had  a  much  larger  application  than  what  I  am  going  to 
read,  yet  it  says  in  the   sixth   clause   that   jurisdiction  under  ii 
shall  be  "  exercised  only  in  relation  to  the  following  parts  of  the 
limits  of  this  order,  that  is  to  say  : — 1.  The  groups  of  islands, 
so  far  as  they  are  not  within  the  jurisdiction  of  the  German 
Empire.     ...     2.  Any   seas,    islands,    and   places   which  are 
not  excluded  by  the  fourth  article  of  this  order,  and  are  situated 
in  the  Western  Pacific  Ocean,  that  is  to  say  mthin  the  following 
limits  :    North,  from  140  degrees  east  longitude  by  the  parallel 
12  degrees  north  latitude  to  160  degrees  west  longitude,  thence 
south  to  the  equator,  and  thence  east  to  149  degrees  30  minutes 
west  longitude  ;   South,  by  the  parallel  30  degrees  south  latitude  ; 
West,   by  the   meridian   140   degrees   east   longitude."     I  have 
worked  that  out  with  the  map  which  I  had  in  Court,  and  I  find 
that  this  island  of  Malayta  is  within  the  specified  limits.     Conse- 
quently the  order  applies  to  the  island,  and  by  a  subsequent 
section  of  the  Act  the  jurisdiction  to  be  assumed  by  any  order 
is  not  to  cover  dominion  by  Her  Majesty,  so  that  the  order  on 
its  face  shows  that  this  island  is  within  its  hmits,  and  being 
within  its  limits  the  island  itself  to  which  it  applies  must  be  not 
a  dominion  of  Her  Majesty  ;   and  as  the  order  is  not  to  apply  to  a 
place  for  the  time  being  within  the  jurisdiction  or  protectorate 
of  any  civilised  Power,  it  must  necessarily  be  outside  the  juris- 
diction or  power  of  any  other  State.     I  think,  therefore,  that  on 
the   law   Mr.    Peez's   objection   is    overruled.     The   Court   must 
necessarily  have  notice  of  all  things  which  its  subjects  must  have 
notice  of,  and  which  they  would  be  taken  to  have  notice  of  at 
their  own  trial.     Now  each  of  these  men  in  the  dock  has  notice 
of  the  law,  and  is  presumed  to  have  actual  knowledge  of  the  law, 
and  under  this  Act  of  Parliament  and  these  regulations  that  is 
the  law  with  respect  to  them.     Now,  could  it  for  one  moment 
be  conceived  that  the  prisoners  are  to  know  the  law  and  the 
Judge  is  not  ?     That  conclusion  would  be  absurd,  and  I  think 
that  the  Judge  must  be  held  to  know  this  judicially.     I  sympathise 
to  a  certain  extent  with  Mr.  Peez  in  his  argument  that  no  metes 
and  bounds  have  been  proved.     If  a  mountain  had  been  men- 
tioned, the  Court  would  have  been  unable  without  proof  to  ascer- 
tain what  were  the  bounds  of  the  mountain.     But  an  island  is 
land  surrounded  by  water,   and  the  moment  one  comes  to  the 


CEIMINAL   EEPORTS,   1860-1907.  •  293 

water  they  come  to  the  limit  of  the  land,  and  they  can  make     Eegina  v.  Vos 

no  mistake,   and  the  Court  takes  judicial  knowledge  of  that.  

I  think  that  the  Court  has  such  information  before  itself  that  it  Ha^iding  J., 
•could  find  that  island  and  the  spot  where  this  took  place.  So 
that  I  overrule  Mr.  Feez's  main  objection.  As  to  the  other 
point,  that  there  is  no  evidence  that  the  three  islanders  were 
■carried  away  without  their  consent,  the  onus  by  the  section 
Tinder  which  they  were  being  tried  is  thrown  upon  them.  I 
think  that  if  the  Crown  simply  made  a  prima  facie  case  of  suspicion, 
the  onus  is  thrown  on  the  prisoners  of  clearing  themselves  and 
showing  consent.  I  also  agree  that  if  the  offence  was  committed 
by  taking  the  islanders  off  the  island,  that  that  offence  could  be 
compounded  afterwards,  and  that  it  would  be  necessary  for  the 
prisoners  to  show  that  the  taking  of  these  men  from  their  islands 
was  from  the  first  inception  with  their  consent.  Whilst  in  the 
neighbourhood  of  the  islands  they  were  bound  to  be  landed  if 
after  consenting  they  withdrew  their  consent.  So  that  it  is 
upon  the  prisoners  right  through.  It  was  said  with  regard  to 
Hall  that  there  was  no  evidence  of  his  connection  with  the  trans- 
action from  the  beginning  to  the  last.  I  think  there  is  evidence  ; 
the  weight  of  it  is  of  course  for  the  jury.  The  prisoner  Hall, 
having  been  mate  on  a  ship,  was  a  man  in  authority  under  the 
captain,  and  in  authority  over  others  when  the  captain  was  absent. 
I  think  that  the  fact  that  on  a  signal  being  made  from  the  boats 
Hall  went  to  these  boats,  and  after  he  got  to  them,  from  his 
position  as  mate,  it  was  his  duty  to  satisfy  himself  of  the  state 
of  affairs.  I  think  that  when  Hall  had  persons  under  his  com- 
mand— sailors  and  others — whose  lives  were  in  his  hands,  he  was 
in  a  place  where  he  might  be  attacked  by  natives  and  firearms, 
he  ought  at  once  to  have  satisfied  himself  of  the  position  of  affairs. 
Had  he  looked  round  it  is  scarcely  possible  to  conceive  but  that 
he  would  have  seen  a  man  had  been  chopped  in  two  parts  of  his 
body  with  an  axe  and  was  bleeding  at  the  arm.  Had  he  seen 
that,  and  it  is  for  the  jury  to  say  whether  he  did  or  did  not,  it 
was  clearly  his  duty  to  make  inquiry  into  the  case.  If  he  did  not, 
it  was  a  prima  facie  case  against  him,  and  if  he  cannot  discharge 
himself  by  showing  that  these  men  were  there  by  their  own 
consent — ^if  the  jury  find  these  facts — why  necessarily,  a  verdict 
of  guilty  follows.  With  regard  to  the  prisoners  Absalom  and 
Dowsett,  it  is  said  that  there  is  no  evidence  that  they  took  part 
in  the  carrying  away  of  these  boys,  or  aided  and  abetted  or 
counselled    or    procured    the    commission    of   the    offence.     No 


294 


QUEENSLAND  JUSTICE   OF  THE  PEACE. 


Begina  v.  Vos 

AND    OlHEBB. 

Harding  J. 


doubt  there  is  evidence,  but  the  weight  of  it  is  for  the  jury.  They 
were  sailors  in  the  ship,  boatmen  in  the  boat,  and  under  the 
command  of  others.  So  far  they  would  probably  only  come  in 
as  accessories,  unless  it  were  proved  that  they  knew  the  actual 
scheme  to  steal  the  men  and  they  were  actually  taking  part  in 
it.  But  if  they  came  as  aiders  and  abetters  and  accessories,  then 
they  must  have  known  of  the  crime  they  were  taking  part  in  ;  and 
if  they  did  not  know,  or  how  far  they  did  know,  would  be  matter  of 
justification  for  them  to  the  jury.  With  respect  to  the  obeying 
of  superior  orders,  if  under  the  circumstances  they  thought  or 
could  have  thought,  or  if  the  jury  thought  that  they  could  have 
believed  the  persons  commanding  them  were  justified  in  ordering 
them  to  take  away  from  these  islands  these  men  struggling  and 
crying,  and  wounding  their  captors,  well  then  they  will  go  free. 
If  the  jury  carmot  think  that  they  had  any  business  to  obey  these 
superior  orders,  but  ought  to  have  at  once  thrown  down  their 
oars,  and  said,  "  We  won't  have  any  more  to  do  with  this,"  they 
would  have  to  show  consent  on  the  part  of  the  natives.  Then, 
as  to  the  prisoner  Vos,  there  is  direct  evidence  against  him  that 
Quisoolia  offered  to  steal  him  men  and  he  sanctioned  it.  If 
that  is  believed,  well,  there  is  ample  evidence,  but  it  is  for  the 
jury  to  decide  as  to  its  weight.  I  have  satisfied  myself,  for  the 
reasons  I  have  given,  that  there  was  some  evidence.  Before  I 
dealt  with  each  case  I  advised  the  jury  that  the  weight  and  the 
true  value  of  that  evidence  is  for  the  jury,  and  I  do  not  wish 
the  fact  that  I  have  picked  out  pieces  here  and  there  to  have  any 
influence  with  them.  The  question  of  the  facts  will  be  for  them 
in  a  future  stage  of  this  case.  I  am  satisfied  that  there  is  evidence 
on  these  points  to  go  to  a  jury.  I  have  judicial  knowledge  of 
and  have  declared  the  status  of  the  island.  Mr.  Feez,  I  over- 
rule your  objections. 

The  prisoners  were  subsequently  acquitted. 

Solicitors  :    O'Shea  &  O'Shea  ;    Winter  &  McNdb. 


CRIMINAL  REPOflTS,   1860-1907. 


295 


[Brisbane  Ceiminal  Sittings.] 
REGINA  V.  KOVALKY. 

[6  Q.Ii.J.  219.— Note.— See  now  s.  613  of  Criminal  Code.    See  R.  v.  Roche  (3  Q.L.J. 

139,  ante  p.  204.)] 

Criminal  law — Arraignment — Deaf  mute — Insanity. 

A  person  charged  with  murder  was  found  mute  by  the  visitation  of  God.  A 
fresh  jury  was  impanelled  to  try  whether  he  was  sane  or  not.  Evidence  was  given 
that  he  bad  not  sufficient  intellect  to  understand  the  proceedings  so  as  to  mal:e  a 
proper  defence,  challenge  the  jurors,  or  comprehend  the  details  of  the  evidence. 
HaBDiNG  J.  directed  the  jury,  if  they  thought  he  had  not  sufficient  intellect  there- 
for, to  find  him  insane.  The  jury  did  so,  and  the  prisoner  was  ordered  to  be 
detained  to  be  dealt  with  under  The  Insanity  Act  of  1884,  Regina  v.  Pritchard  (7 
C.  &  P.  303)  followed. 

Inpormation  against  August  Kovalky  for  murder. 

The  prisoner,  on  being  arraigned,  stood  mute.  A  jury  was 
impanelled  to  try  whether  the  prisoner  was  mute  by  malice  or 
by  the  visitation  of  God.  Medical  and  other  evidence  was  given, 
and  the  jury  found  that  he  was  mute  by  the  visitation  of  God. 
A  fresh  jury  was  then  impanelled  to  decide  whether  he  was 
insane. 

Evidence  was  given  that  the  prisoner  was  a  deaf  mute,  and 
had  not  sufficient  intellect  to  understand  the  proceedings  of  the 
Court  so  as  to  make  a  proper  defence,  to  challenge  the  jurors, 
and  comprehend  the  details  of  the  evidence. 

Harding  J.  directed  the  jury  on  the  authority  of  Regina  v. 
Pritchard  (7  C.  &  P.  303)  that  if  they  believed  the  evidence  they 
should  find  the  prisoner  insane.  The  jury  found  that  the  prisoner 
was  insane  and  could  not  be  tried  on  the  information. 

Harding  J.  directed  the  prisoner  to  be  kept  in  strict  custody 
in  the  Brisbane  Gaol  until  he  should  be  dealt  with  in  the  manner 
provided  by  The  Insanity  Act  of  1884. 


1895. 
26th  March. 

Harding  J. 


Harding  J. 


296  QUEENSLAND  JUSTICE   OF  THE  PEACE. 

[BUNDABEEG   CbIMINAL   SITTINGS.] 

REGINA  V.   MANY  MANY  AND  OTHERS. 

[6  Q.L.J.  224.— Note.— Case  referred  to  in  K.  v.  Tim  Crown  (6  Q.L.J.  283,  )post. 
See  also  R.  v.  Archibald  (2  S.C.B.  47),  ante  p.  44 ;  McNamara  v.  Edwards 
(1907  S.R.Q.  9),  post.] 

1895.  Criminal  law — Evidence — Confession — Answers  to  questions  put  by 

mhApril.  ^  pp^^gg  constable  after  arrest— b%  Vic,  No.  23,  S8.  2,  10. 

Harding  J.  ^  confession  elicited  by  questions  put  to  a  prisoner  by  a  police  constable  after 

arrest  and  without  caution  is  admissible  against  the  prisoner  unless  the  answers 
have  been  induced  by  a  threat  or  a  promise. 

Regina  v.  Gavin  (15  Cox  656)  any  Regina  v.  Male  (17  Cox  689)  not  followed. 

Infokmation  against  Many  Many,  Forka,  Narasamei,  Miore, 
Ohasbiby,  and  Quitongtonga,  Pacific  Islanders,  for  the  murder 
of  a  white  man,  whose  name  was  unknown. 

Evidence  was  given  of  the  finding  of  the  body  of  a  man,  and 
several  articles  were  found  near  the  body  and  taken  possession  of 
by  the  police.  The  Crown  proposed  to  give  in  evidence,  state- 
ments made  by  each  prisoner  to  a  poHce  constable  after  arrest 
and  without  caution  being  administered.  The  constable  pointed 
out  the  articles  to  the  prisoners  separately  and  said,  "  You  see 
them  ?  "  The  prisoners  answered,  "  Yes ;  belong  'em  old  fellow 
white  man  ;    me  altogether  kill  'im." 

Scott,  for  the  prisoners,  objected,  and  submitted  the  police  had 
no  right  to  ask  questions  after  arrest,  citing  Regina  v.  Bodkin, 
9  Cox,  403  ;  Regina  v.  Gavin,  15  Cox,  656  ;  Regina  v.  Male  and 
Cooper,  17  Cox,  689  ;  Regina  v.  Walker,  13  V.L.R.  469  ;  and 
submitted  the  question  was  not  affected  by  58  Vic.,  No.  23,  s.  10. 

Power,  for  the  Crown,  submitted  there  was  no  inducement, 
and  pressed  for  the  ruhng  of  the  Court. 

Harding  J.  Habding  J.:    The  Evidence  and  Discovery  Act  of  1867  was 

meant  to  be  a  code  on  the  law  of  evidence  for  Queensland.  Sec. 
64  of  that  Act  dealt  with  confessions,  and  is  identical  with  sec. 
11  of  the  New  South  Wales  statute,  22  Vic,  No.  7.  Sec.  64  was 
repealed  last  year  by  The  Criminal  Law  Amendment  Act,  and  a 
new  provision  enacted,  which  now  regulates  the  law  under  sec. 
10.  This  provision  is  that  no  confession  shall  be  received  which 
has  been  made  under  the  influence  of  a  threat  or  promise  made 
by  a  person  in  authority.  That  re-enacts  the  old  law,  with  this 
exception  :  that  it  leaves  out  the  provision  of  the  Act  of  1867, 
which  regulates  a  confession  induced  by  an  untrue  representa- 


CRIMINA.L  REPOBTS,  1860-1907. 


297 


tion,  or  a  confession  induced  by  a  threat  or  promise  made  by  any 
person  whatsoever.  Now  the  law  provides  that  the  threat  or 
promise  inducing  the  confession  must  be  made  by  a  person  in 
aathority.  When  this  law  came  into  force  in  New  South  Wales 
the  law  in  England  was  different  from  that  cited  by  the  learned 
counsel  for  the  defence.  In  Roscoe's  Criminal  Evidence,  10th 
Ed.,  p.  51,  it  is  stated  that  a  confession  is  admissible  in  evidence 
where  it  has  been  eUcited  by  questions  put  by  a  person  in  author- 
ity. The  law  of  England  before  1867  is  to  be  found  in  the  case . 
of  Eegina  v.  Thornton,  1  Mood,  C.C.  27,  also  in  Russell  on  Crimes, 
vol.  iii.,  p.  472,  and  the  cases  collected  in  Archbold,  264-266  all 
contained  the  same  ruling,  till  Regina  v.  Gavin,  which  was  decided 
after  the  passing  of  the  Colonial  Act.  In  England,  where  there 
is  no  statutory  law  on  the  subject,  it  appears  to  me  that  the  judges 
have  been  expanding  the  rule  against  the  admission  of  confessions. 
The  New  South  Wales  statute  was  passed  in  1858,  before  Separa- 
tion. So  far  as  I  know,  it  has  been  the  constant  practice  here  to 
■allow  such  answers  to  go  in.  I  have  frequently  had  occasion  to 
comment  on  the  impropriety  of  obtaining  evidence  in  such  a  way, 
but  I  am  certain  the  above  has  been  my  practice,  and  I  have  a 
strong  recoUection  of  Sir  Charles  Lilley  also  having  made  it  so. 
His  charge  to  a  constable  in  one  case  was,  "  Keep  your  eyes  open, 
and  say  nothing."  But  he  held  that  if  a  constable  did  ask  any 
questions  of  a  prisoner  when  under  arrest,  although  it  was  morally 
wrong,  the  evidence  was  not  inadmissible.  It  has  been  decided 
at  least  six  times  in  New  South  Wales  that  such  evidence  is 
admissible.  These  cases  are  cited  in  Wilkinson's  Magistrate,  pp. 
118-119.  In  the  case  of  Regina  v.  Spring  and  Mason,  where  the 
accused  were  charged  with  murdering  one  De  Witt,  the  learned 
judge  would  have  admitted  the  confession,  had  not  the  statement 
that  induced  it  been  untrue.  That  was  as  far  back  as  1860.  I 
think,  therefore,  that  as  regards  the  law  in  the  Colonies,  the 
matter  is  res  judicata.  If  it  is  not,  I  am  perfectly  willing  to  assume 
the  responsibility  of  deciding  it  myself.     I  admit  the  evidence. 

The  prisoners  were  convicted  and  sentenced  to  death. 

Solicitor  :  Thorburn. 


Beoina  u. 
Many  Many 
AND  Others. 

Harding  J. 


298 


QUEEISSLAND  JUSTICE   OF  THE  PEACE. 


1895. 
15th  May. 

Chuhb  J. 


Chubb  J. 


[Chaktees  Towers  Criminal  Sittings.] 

REGINA  V.  ROSS. 
[6  q.L.J.  261.— Note.— See  now  s.  619  of  Criminal  Code.] 

Criminal  law — Murder — Practice — Statement  of  prisoner  read  to 

jury. 

A  prisoner  was  allowed  to  read  a  statement  to  tbe  jury  after  his  counsel's  address, 
and  the  Crown  Prosecutor  was  allowed  a  reply  on  the  new  matter. 
Bcgina  v.  Shimmin  (15  Cox  122)  followed. 

At  the  Circuit  Court,  Charters  Towers,  held  before  Chubb  J., 
in  May,  1895,  George  Ross  was  tried  for  the  murder  of  his  wife, 
Annie  Ross.  At  the  close  of  the  case  for  the  Crown,  Macnaughton, 
for  the  prisoner,  announced  that  he  did  not  intend  to  caU  witnesses, 
but  asked  the  Court  to  allow  a  written  statement,  signed  by  the 
prisoner,  to  be  read  to  the  jury  before  he  addressed  them  on  his 
behalf. 

Chubb  J.  :  The  prisoner  is  now,  by  The  Criminal  Law  Amend- 
ment Act,  1892,  a  competent  witness  on  his  own  behalf.  Why 
cannot  he  give  this  statement  on  oath  ? 

Macnaughton  :  He  is  in  such  a  state  of  nervous  anxiety  that 
I  do  not  think  he  is  physically  able  to  give  evidence.  In  Regina, 
V.  Blacks,  1880,  Bowen  J.,  on  a  trial  for  murder  allowed  this 
course.  In  Regina  v.  Doherty  (16  Cox,  306),  Stephen  J.  did  the 
same,  subject  to  the  right  of  the  prosecution  to  reply. 

Chubb  J.  :  In  Regina  v.  Milehouse  (15  Cox,  622)  Lord  Coleridge 
C.J.  says  that  it  may  be  done  after  his  counsel  has  addressed 
the  jury,  and  that  this  was  resolved  by  the  majority  of  the  Judges, 
in  which  he  did  not  agree.  The  question  was  considered  at  a 
meeting  of  all  the  Judges  liable  to  try  prisoners,  held  in  November, 
1881,  and  adjourned  for  further  consideration.  After  this 
meeting.  Cave  J.,  in  Regina  v.  Shimmin  (15  Cox  122),  allowed  the 
prisoner  to  give  his  own  version  of  the  facts  after  his  counsel  had 
addressed  the  jury,  subject  to  a  right  of  reply  by  the  prosecution 
on  the  new  matter,  and  His  Lordship  said  that  this  was  the  rule 
of  practice  intended  to  be  followed  in  future.  Now  that  the 
prisoner  is  a  competent  witness  for  himself,  ought  the  practice 
to  be  continued  ?  I  do  not  know  of  any  settled  rule  in  this  Court 
one  way  or  the  other.  For  the  present,  therefore,  I  will  follow 
Regina  v.  Shimmin,  and  allow  the  statement  to  be  read  after  you. 
have  addressed  the  jury. 


CRIMINAL  REPORTS,   1860-1907. 


299 


MacnaugUon  then  addressed  the  jury,  after  which  the  prisoner's    Eeoina^Boss, 
statement  was  read  by  his  counsel  and  handed  to  the  associate. 
Jameson  rephed  for  the  Crown. 
The  prisoner  was  convicted  of  manslaughter. 


[ROCKHAMPTON    CIRCUIT      COUET.] 

REGINA  V.  WILLIAM  TRACEY. 

[6  Q.L.J.  272.— Note.— 29  Vic,  No.  11,  ss.  15  and  16,  are  repealed,  see  now  s.  410  of 
Criminal  Code  as  to  definition  of  loaded  arms  to  same  effect  as  s.  16  of  repealed 
Act  (29  Vic,  No.  11).] 

Criminal  law — 29  Vic,  No.  11,  ss.  15,  16 — Attempt  to  discharge 
a  loaded  arm — Failure  of  attempt  from  want  of  priming  or 
other  cause. 

A  revolver,  loaded  in  some  of  its  chambers,  and  capable  of  being;  discharged  if 
the  trigger  is  drawn  a  sufficient  number  of  times,  is  a  loaded  arm  within  the 
meaning  of  29  Vic,  No.  11,  s.  16. 

The  prisoner  drew  the  trigger  of  a  six-chambered  revolver,  which  was  loaded  in 
three  consecutive  chambers,  three  times,  the  hammer  falling  upon  the  empty 
chamhers.  Before  he  had  time  to  draw  the  trigger  a  fourth  time  the  weapon  was 
knocked  oat  of  his  hand. 

Held,  there  was  evidence  of  an  attempt  to  discharge  loaded  arms. 

The  information  against  the  prisoner  was  under  29  Vic,  No.  11, 
s.  15,  for  attempting  to  discharge  loaded  arms  with  intent  to 
murder. 

Power  for  the  Crown. 

Pattison  for  the  prisoner. 

It  appeared  that  the  prisoner,  on  the  19th  May,  had  been 
drinking  and  fighting  with  another  man  in  the  yard  of  an  hotel 
at  Barcaldine.  There  was  a  large  crowd  of  men  in  the  yard. 
The  prisoner  had  knocked  down  his  opponent,  who  rose,  and 
was  about  to  renew  the  struggle,  when  the  prisoner  drew  from  his 
belt  a  six-chambered  self-acting  repeating  revolver,  loaded  in 
three  consecutive  chambers,  and  pointed  it  at  the  -crowd.  At 
this  moment  a  police  constable  in  plain  clothes  rushed  through 
the  crowd,  and  cried,  "  Stop  that,  Tracey  !  "  The  prisoner  then 
pointed  the  weapon  at  the  constable's  breast,  and  said,  "  Stand 
back,  or  I'll  put  a  ball  through  you,"  and   immediately  drew  the 


1895. 
Mth  September. 

Chubb  J. 


300 

Regina  v. 
William  TBACBt. 


Chubb  J. 


QUEENSLAND  JUSTICE  OF.  THE  PEACE. 

trigger  three  times.  Three  distinct  cHcks  of  the  hammer  faUing 
on  the  chambers  were  heard,  but  the  hammer  having  fallen  on 
the  unloaded  chambers,  it  was,  of  course,  not  discharged.  Before 
the  prisoner  could  draw  the  trigger  again  the  constable  closed 
upon  him,  and  knocked  the  weapon  out  of  his  hand.  Upon 
examination,  it  was  found  that  the  next  pull  of  the  trigger  would 
have  caused  the  hammer  to  fall  on  a  loaded  chamber. 

The  question  was  raised  whether  the  revolver  was  a  loaded 
arm  within  the  meaning  of  the  statute,  and  whether  there  was 
evidence  of  an  attempt  to  discharge  it. 

Chubb  J.  referred  to  Regina  v.  Jackson,  17  Cox,  104,  per 
Charles  J.,  and  said  he  was  of  an  affirmative  opinion  on  both 
points,  but  would,  if  necessary,  reserve  the  questions  for  the 
consideration  of  the  Full  Court. 

The  prisoner  was  acquitted. 


1895. 
2nd  December. 

Griffith  CJ. 


[Brisbane  Criminal  Sittings.] 
REGINA  V.  FREEMAN. 

[6  Q.L.J.  281. — Note. — As  to  challenge,  see  now  s.  611  of  Criminal  Code.  As 
to  Crown  showing  cause  for  challenge,  see  R.  v.  Shaw  (7  Q.L.J.  (N.C.)  Ill), 
post.  Case  followed  in  R.  v.  Wardell  (9  Q.L.J.  49),  post,  and  R.  v.  Johnstone 
(1907.  S.R.Q.  155),  post] 

Trial  on  criminal  charge — Jurors — Challenges — Order  to  stand  by 
— Proceedings  in  absence  of  jury — Evidence — Dying  declaration. 

A  juror  coming  to  the  book  to  be  sworn  had  put  out  his  hand  and  had  touched 
but  not  grasped  the  book,  when  he  was  called  upon  by  the  Crown  to  stand  by. 

Held,  that  that  the  order  to  stand  by  was  not  too  late. 

The  time  during  the  empanelling  of  a  jury  at  which  the  Crown  shall  show  cause 
for  their  challenge  is  in  the  discretion  of  the  Court. 

The  whole  of  the  proceedings  in  a  criminal  trial  must  be  in  the  presence  of  the 
jury. 

On  the  trial  of  A  for  murder,  a  statement  by  the  deceased  person  B  was  tendered 
as  a  dyin^  declaration.  At  the  time  of  her  making  the  statement  B  was  in  danger 
of  her  life  from  blood-poisoning,  of  which  she  died  five  weeks  later.  She  was 
informed  by  her  medical  attendant  that  she  would  never  recover.  She  said,  "  Let 
me  die."  A  magistrate  was  then  brought,  who  said  to  her,  "Are  you  sure  you  will 
never  recover?"  She  said,  "Yes."  She  then  made  the  statement  in  question, 
which  was  reduced  into  writing  by  the  magistrate.  He  then  read  the  statement 
over  to  B,  and  she  said  it  was  correct.     The  magistrate  then  said,  "Do you  expect 


CRIMINAL ■  REPORTS,  1860-1907.  i  801 

ever  to  recover?"     B   said,  "No."     The  magistrate  then   said,  "This  is  your  Eegina  v. 

dying  declaration,  will  you  sign  it  ?  "     B  signed  it.  Fbeeman. 

Both  before  and  after  the  making  of  the  statement  B  asked  her  nurse,  "Do  you 
think  I  shall  die  ?  "     The  nurse  said,  "  No. " 

The  statement  contained  the  words,  "Being  in  a  serious  state  and  not  expecting 
to  recover." 

Held,  that  the  statement  oould  not  be  admitted. 

Trial  of  Howard  Freeman  on  a  charge  of  the  murder  of 
Katherine  Noble  Crofton,  before  Griffith  C.J.  and  a  jury,  at  the 
Brisbane  Criminal  Sittings. 

Power  appeared  to  prosecute. 

Lukin  for  the  prisoner. 

During  the  empanelling  of  the  jury,  a  juror,  Frederick  Webb, 
was  ordered  by  the  Crown  to  stand  by.  Mr.  Lukin  objected  that 
challenge  was  too  late. 

On  inquiry  from  the  tipstaff  and  the  juror  himself,  it  appeared 
that  the  latter  had  put  out  his  hand  towards,  and  had  touched 
the  book,  but  that  it  was  still  entirely  resting  in  the  officer's  hand 
when  the  juror  was  called  upon  to  stand  by. 

Power  referred  to  Roscoe,  p.  197,  and  to  Joy  on  Confessions, 
p.  217. 

Griffith  C.J.  :  I  think  the  challenge  was  in  time.  The  juror 
will    therefore    stand    by. 

When  the  jury  panel  had  been  gone  through  twice,  only  ten 
jurors  had  been  sworn,  the  prisoner's  counsel  having  peremptorily 
challenged  seventeen  jurors.  The  other  jurors  had  been  ordered 
to  stand  by.  The  first  of  these  jurors  was  then  again  called, 
and  was  again  ordered  by  the  Crown  to  stand  by. 

Lukin  :  This  is  the  third  time  of  calling  the  panel.  The  Crown 
can  now  only  challenge  for  cause. 

Power  :  The  Crown  need  not  show  cause  for  their  challenge 
until  it  appears  that  a  jury  cannot  be  empanelled  without  recourse 
to  the  jurors  ordered  to  stand  aside  by  the  Crown. 

Griffith  C.J.  :  The  judgment  of  Bramwell  B.,  in  Mansell  v.. 
Regina  (D.  &  B.,  375)  is  directly  in  point.  I  will  follow  his^ 
opinion,  and  I  therefore  hold  that  the  direction  to  stand  by  at 
this  stage  is  to  be  considered  as  an  application  to  the  discretion 
of  the  Court  to  allow  the  assignment  of  cause  for  the  Crown's 
challenge  to  be  postponed.  As  there  are  still  some  twenty 
jurors  unsworn,  I  will  allow  the  assignment  of  cause  to  be  post- 
poned accordingly. 


302  QUEENSLAND  JUSTICE    OF  THE    PEACE. 

Eegina  v.  During  the  trial  Lukin  wished  to  cross-examine  witnesses  as 

^ ■         to  the  admissibility  of  a  statement  tendered  by  the  Crown  as 

evidence  against  the  prisoner,  and  proposed  to  do  so  in  the  absence 
of  the  jury. 

Griffith  C.J.  :  I  do  not  think  that  such  a  course  can  be 
followed.  The  jury  must,  I  think,  be  present  throughout  the 
whole  of  the  proceedings. 

A  statement  made  by  the  deceased  was  tendered  by  the  Crown 
as  a  dying  declaration. 

The  circumstances  of  the  making  of  the  declaration  appeared 
by  the  evidence  of  Dr.  Budgett  and  J.  W.  Ayscough,  and  were 
as  above  set  out. 

Lukin  objected  to  its  reception,  and  cited  R.  v.  Osman  (15  Cox, 
C.C.  1),  R.  V.  Gloster  (16  Cox,  C.C.  47